        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   April 17, 2012 Session

       STATE OF TENNESSEE v. VERNICA SHABREE CALLOWAY

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2007-C-2178     Cheryl Blackburn, Judge


                   No. M2011-00211-CCA-R3-CD - Filed April 4, 2014


The defendant, Vernica Shabree Calloway, was convicted of aggravated child neglect, a
Class A felony, and reckless aggravated assault, a Class D felony. The trial court merged the
assault conviction with the neglect conviction and sentenced the defendant as a violent
offender to twenty-five years in the Department of Correction. On appeal, the defendant
argues that: (1) the evidence is insufficient to support her convictions; (2) the trial court
erred by not requiring the State to make an election of offenses; (3) the trial court erred in not
instructing the jury that it could convict her of either Count 1 or Count 2 of the indictment,
but not both; (4) her convictions violate double jeopardy; (5) the trial court erred in admitting
expert opinion testimony after the State violated the trial court’s order with respect to the
information that could be provided to the expert; (6) the trial court erred in admitting as an
exhibit a “learned treatise”; (7) the trial court erred in admitting unfairly prejudicial and
irrelevant evidence; (8) the trial court erred by denying her motion to redact portions of her
interviews with the police and the Department of Children’s Services (“DCS”); (9) the trial
court erred in admitting testimony from the victim’s foster mother; and (10) the trial court
imposed an excessive sentence. Following our review, we remand for entry of a single
judgment setting the defendant’s release eligibility at 30%. We conclude that all of the
defendant’s other issues are without merit and affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                and Remanded for Entry of Corrected Judgment

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

C. Dawn Deaner, District Public Defender (on appeal and at trial); and James P. McNamara,
Assistant Public Defender (at trial), for the appellant, Vernica Shabree Calloway.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Katrin
Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

        This cases arises out of the defendant’s having given birth at home on a toilet on
October 31, 2006. The defendant took her newborn daughter to a hospital several hours later,
and the child survived but suffered permanent brain damage as a result of “hypoxia,” or a
lack of sufficient oxygen, which occurred sometime around birth. In August 2007, the
defendant was indicted for the aggravated child neglect, aggravated child abuse, and
attempted first degree murder of the victim. The attempted murder charge was dismissed
prior to trial, however.

        In order to understand the issues raised in this appeal, we must provide some
background information about the defendant and her criminal history. Before the trial in this
case, the defendant was charged in the deaths of three other children, Stephen Ward, Alexis
Humphreys, and Stephanie Ward, who had each, at separate times, died while under her care.
Stephen and Stephanie Ward were the defendant’s son and daughter, and Alexis Humphreys
was the daughter of the defendant’s friend.

       The defendant was first tried and convicted of the second degree murder of her
daughter, Stephanie Ward. State v. Ward, 138 S.W.3d 245, 250 (Tenn. Crim. App. 2003).
Because Stephanie was the third child in the defendant’s care to die of unexplained causes,
the State’s expert medical witnesses in that case relied on the “‘rule of three,’ i.e. the first
unexplained child death in the presence of a sole caregiver can be classified as SIDS [Sudden
Infant Death Syndrome], with the second such death classified as undetermined, and the third
and subsequent deaths result in all of the deaths being classified as homicides by
asphyxiation,” in concluding that Stephanie’s death was a homicide by asphyxiation. Id. at
270-71. This court reversed the conviction and remanded for a new trial due to the medical
experts’ reliance on the “rule of three” in reaching their determinations, even though the
experts did not refer to it as such, concluding that neither the “rule of three” nor the concept
behind the rule was a proper foundation under the standards set forth in McDaniel v. CSX
Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997), for expert opinion testimony. Ward, 138
S.W.3d at 271.

       The defendant was subsequently retried in that case. The jury acquitted her of the
second degree murder charge but could not reach a unanimous verdict on a lesser-included
offense. Although the charges against the defendant remained pending in that case, as well
as in the cases involving the deaths of Stephen Ward and Alexis Humphreys, the State
elected to try the defendant next on the charges in the case at bar.

                                               2
       In the case at bar, both the defendant and the State filed numerous pretrial motions,
including a motion by the State “to use evidence of defendant’s prior conduct in support of
expert witness testimony pursuant to Tenn. Rules Evid. 702-705.” Specifically, the State
sought to be allowed to provide information to medical experts “detailing evidence of the
defendant’s past conduct of smothering three children to death and evidence of the
defendant’s claims that Stephanie and Stephen Ward had episodes in which they stopped
breathing before their death[s].” The State also sought permission to provide their medical
experts with evidence that the defendant had given birth to two other children who had been
removed from her care and who had not suffered any episodes of breathing difficulties. The
State asserted that such information was “foundational evidence to enable” their experts “to
form reliable opinions as to the specific cause of [the victim’s] asphyxial trauma” and to
“formulate reliable opinions on whether the cause for [the victim’s] injuries are the result of
non-accidental trauma or resulted from some alternative cause.”

         The State also filed a motion to use evidence of the defendant’s prior conduct pursuant
to Tennessee Rule of Evidence 404(b). Specifically, the State sought permission to introduce
at trial evidence “of the defendant’s past conduct of causing the deaths of three other children
through asphyxial trauma” and “that Stephen and Stephanie Ward sustained prior episodes
of breathing difficulties while in the defendant’s care prior to their deaths.” The State argued
that such information was “relevant to establish that [the victim] suffered asphyxial trauma
through non-accidental means and that the defendant knowingly or intentionally caused such
injuries.” The State additionally argued that “[t]he facts surrounding the pregnancy and birth
of [the victim] additionally demonstrate the defendant’s repeated efforts to conceal her
pregnancy from those who might intervene to protect the welfare of her child, and provide
compelling circumstantial evidence of the defendant’s ongoing ‘common scheme or plan’
to cause injury to children through means of asphyxial trauma and then to cover up her
misdeeds through a web of deceit.”

        The State, therefore, requested that, in addition to evidence of the defendant’s
involvement in the deaths of the three other children, it be allowed to introduce at trial a
number of other pieces of evidence, including evidence that DCS had previously removed
two other children from the defendant’s care during the pendency of the criminal proceedings
against her based on the deaths of the three children; evidence that the defendant had violated
various conditions of her bond; evidence that the defendant concealed her pregnancy during
a September 5, 2006 court appearance; evidence of the defendant’s efforts to conceal her
pregnancy from her co-workers, employers, and various medical professionals; evidence that
the defendant repeatedly provided false information about her pregnancy history; and
evidence that the defendant refused to provide the names of her previous children to DCS
employee Cheryl Gooch. The State argued that such evidence “provide[d] a conceptual
framework for understanding the defendant’s conduct in regards to the pregnancy and birth
of [the victim]” and was “relevant to establish the motives behind the defendant’s efforts to

                                               3
conceal her pregnancy with [the victim], her motivations in failing to pursue appropriate
prenatal care, her refusal to give birth at a hospital and her actions in concealing the delivery
of [the victim] before she went to [the hospital].” The State further argued that the “other
acts” evidence, which included the defendant’s “entire course of conduct,” was “necessary
to sustain the willingness of jurors to draw the inferences necessary to reach an honest
verdict, and that the exclusion of parts of this evidence would create an incomplete picture
of the offenses, the relationship of the parties, and a conceptual and chronological void that
would like[ly] lead to an incorrect assessment of the evidence involving the indicted acts.”

       Thereafter, the trial court held a series of pretrial hearings at which it considered the
parties’ various motions, including the ones detailed above. The trial court issued several
rulings throughout the pretrial period, some of which we will review after summarizing the
relevant testimony from the pretrial hearings.

                             January 9, 2008 Pretrial Hearing

         Lindy Miller, a physical therapist at Concentra Medical Center, testified that she
began treating the defendant on October 27, 2006, for a hand injury and saw her again on
October 31, 2006, and November 7, 2006. She also saw the defendant for another
appointment between the October 31 and November 7 visits but could not recall the exact
date. Miller obtained a medical history from the defendant during her first visit, but the
defendant provided no information indicating that she was pregnant. During the October 31
visit, the defendant said she was having a lot of pain and trouble doing her exercises, so the
treating orthopedic physician, Dr. Steve Salyers, prescribed medication for her. At the
November 7 visit, the defendant informed Miller that she had had a baby but had been
unaware that she was pregnant. Miller said she never suspected that the defendant was
pregnant.

       Lorraine Pipkins testified that she and the defendant had been co-workers and that the
defendant lived with her at her apartment in Nashville for about a month before the instant
offense. The defendant left Pipkins’ apartment the night of October 31, 2006, and did not
return until about a week later to collect some clothes. At that time, the defendant told
Pipkins that she was going to the hospital, but Pipkins did not know that the defendant’s
child was in the hospital.

        Detective Sarah Bruner of the Metro Police Department Youth Services Division
testified that she was contacted by Virginia Thomas of the DCS to assist with interviewing
the defendant regarding the circumstances of the victim’s birth. Thomas informed Detective
Bruner that the defendant had been charged with the deaths of three other children. Detective
Bruner interviewed the defendant at Baptist Hospital on November 16, 2006. Bruner made
a CD copy of the interview, which was admitted into evidence. During the interview, the

                                               4
defendant was not physically restrained, did not appear to be under the influence of alcohol
or controlled substances, and denied using drugs prior to giving birth to the victim.
Explaining the victim’s birth, the defendant said she had squatted over the toilet, there was
a pop and a gush of water, and she then gave two pushes delivering the victim whom she
pulled up to her chest. According to the defendant, she then passed out. The defendant also
said the victim cried vigorously, both before the defendant passed out and later as she was
taking the victim to the hospital.

       The defendant brought up the names of three deceased children, Stephen Ward,
Stephanie Ward, and Alexis Humphreys, in the interview and made statements about them.
She talked at length about how it bothered her that people thought she was guilty of killing
those children. Detective Bruner said that the defendant was not in custody at the time of the
interview, which lasted three hours and twelve minutes. She acknowledged that she did not
ask the defendant if she wished to have an attorney present for the interview or if she was
presently represented by counsel for matters pertaining to those children. Detective Bruner
learned that the defendant had also used the last names of Ward and Jackson in the past and
had a criminal record under the name of Ward.

                             April 21, 2008 Pretrial Hearing

       Dr. Robert Reece, a pediatrician and the director of the child protection programs at
Tufts Medical Center in Boston, Massachusetts, testified his area of specialization was child
abuse pediatrics and he had authored a chapter about the distinction between fatal child abuse
and SIDS in the textbook, Child Abuse Medical Diagnosis and Management. He said he was
the executive editor of The Quarterly Update, a review journal that “reviews articles that
have to do with child abuse or things that could be confused with child abuse as well as
dealing with professional issues in the field of child abuse and neglect.” Dr. Reece
frequently taught at conferences on subjects dealing with child abuse, including
differentiating between children who suffer injuries from a suffocation method versus an
accidental method. He had been qualified as an expert in the field of pediatrics and child
maltreatment in ten or twelve other jurisdictions and was accepted by the trial court as an
expert in that field.

       Dr. Reece testified that hypoxia “means too little oxygen for the tissue that’s being
supplied with oxygen. So you get injury as a result of too little oxygen.” He said that a
hypoxic injury to the brain of a newborn can occur as the result of an accident, during the
birthing process, or from intentional causes. He stated he reviewed the same sources of
information when evaluating hypoxic injuries in children whether the child lived or died. He
explained, “It’s a matter of degree of the hypoxia as to whether or not the child goes on to
death or whether it stops short of death.” He said that external evidence is not always present
when a child suffers a hypoxic injury and explained that “many times a baby can be

                                              5
smothered without any external evidence of that smothering.” Dr. Reece noted that when
there is no physical evidence to establish how a hypoxic injury occurred, it is “critical” to
have “as much information about the medical history of the baby, the social history, the
family history, the genetic history, the history of the pregnancy, the labor and delivery,
[Child Protective Services] involvement, [and] law enforcement involvement.”

        Dr. Reece acknowledged that he had not received or evaluated any of the victim’s
medical records, social services history, or police reports but knew that the victim had been
brought to the emergency room with a hypoxic and ischemic injury resulting in the death of
brain tissue as revealed by an MRI. He said that the victim’s brain wave test was abnormal,
indicating a cerebral injury. Dr. Reece said that, in order for him to determine the cause of
the victim’s hypoxic injury, he would need to know the circumstances surrounding the
victim’s birth, including information about the mother’s health during pregnancy, how many
prior pregnancies she had experienced, the length of labor, previous labors the mother may
have had, whether the victim cried at the time of delivery, and whether the victim’s birth had
produced apnea or hypoxia. He noted that it would also be important to know the mother’s
pattern of behavior toward other children, whether the victim was a wanted baby and whether
“this was something that would give some kind of motive to dispose of the baby.” He said
that inconsistent histories were “always worrisome . . . when we’re trying to establish
between a legitimate medical condition and something that has been produced by abuse.”
Medical histories for other children born to the victim’s mother would also be important in
formulating an opinion as to the cause of the victim’s injury because there were “so many
question marks around the birth of [the victim]. The previous history of other children
having suffered other kinds of problems would make one lean further in the direction of
saying that this is an unsafe home.” Dr. Reece explained that the term “apparent life
threatening events” are events that “would make one believe that a serious and possibly fatal
outcome could be expected if intervention is not attempted.” He said it was important to
know if there was a history of similar events involving the victim’s siblings and other
children in the care of the defendant.

       On cross-examination, Dr. Reece agreed that there was limited time for a treating
physician to obtain historical information when a child is brought in to the emergency room
with the symptoms the victim had. Asked what effect he thought the defendant’s taking
Hydrocodone on the day of the victim’s birth had on the victim’s condition, Dr. Reece
replied, “I don’t think much . . . unless it was an ongoing use of that drug. . . . I don’t think
that has anything to do with the [victim’s] presentation.” He acknowledged that there was
no medical test to determine exactly when the victim’s hypoxic injury occurred but said that
the fact that the victim cried immediately at birth indicated “there was probably no prenatal
hypoxia going on.” However, he agreed that the only information he had to rely upon was
what the defendant provided and that if the information was inaccurate, it called into question
whether he could eliminate prebirth hypoxia or during-birth hypoxia as the cause of the

                                               6
victim’s injury. He said that if the mother had a negative social history, including drug abuse
or a previous history of having abused or killed a child, “then child abuse will rise up pretty
high on the list” as the cause of the injury.

       Dr. Reece agreed that if a woman became pregnant, did not seek an abortion in a
timely fashion, did not want the child, did not tell anyone that she was pregnant, and no one
realized that she was pregnant, it would not be difficult for her to physically asphyxiate the
child and cause the child’s death. Because the defendant related that the victim cried
immediately after birth, as well as on the way to the hospital, Dr. Reece opined that the
victim did not have any signs of a hypoxic injury during birth but agreed that his conclusion
rested upon the reliability and accuracy of the defendant’s account of the birth.

        In response to questioning from the trial court, Dr. Reece said that in determining the
cause of the victim’s hypoxic injury, it was important to know if any of the victim’s siblings
suffered from a metabolic disease or genetic condition that could lead to apnea. He also said
that it would be important to know the circumstances of the victim’s birth. He opined, “In
this case to be perfectly honest I can’t think of much else that would cause this baby to have
suffered this hypoxic injury than having been asphyxiated. There’s just nothing else here
that I’ve been provided that would tell me what this is due to.”

      On redirect examination, Dr. Reece agreed that it was very difficult to differentiate
between deaths caused by SIDS and suffocation.

                              June 4, 2010 Pretrial Hearing

       Cheryl Gooch, a former DCS employee, testified that she was assigned to investigate
the victim’s case and that she interviewed the defendant prior to the defendant’s November
16, 2006 interview with Detective Bruner. During Gooch’s interview, the defendant refused
to provide the names of her other children despite Gooch’s asking her several times. Gooch
then advised her supervisor, Virginia Thomas, about the defendant’s refusal to provide the
names of her other children.

        On August 4, 2008, the trial court entered a lengthy, detailed order in which it denied
the State’s motion to introduce evidence relating to the defendant’s prosecution for the deaths
of the three children, the removal of two children from the defendant’s custody by DCS, and
the defendant’s bond violations. The trial court granted the State’s motion to introduce
evidence that the defendant concealed her pregnancy and repeatedly provided false
information to medical personnel about her pregnancy, finding that such information was
relevant to the defendant’s motive and intent and that its probative value outweighed any
prejudicial effect.



                                              7
        With respect to the State’s request to provide information to its medical experts, the
trial court ruled that the State could give “limited information” to their expert witnesses
regarding the victim’s siblings’ deaths, i.e. that the cause of death should be disclosed but
that the manner of death should be listed only as “undetermined.”1 The court specifically
ruled that the experts should not be informed that the deaths of any of the defendant’s other
children might have resulted from homicide, finding that it would be “too prejudicial” and
could potentially “slant” the opinion of the experts. Further, the trial court ruled that the
State could provide their experts with information about the defendant’s pregnancy with the
victim, the number of prior pregnancies the defendant had experienced, her previous labors,
the length of her labor, her health during pregnancy, the victim’s medical records, medical
histories of the defendant’s other children including cause of death without indicating manner
of death as anything other than undetermined, and any statements the defendant made to law
enforcement or medical personnel regarding her pregnancy with the victim and the birth of
the victim or the births of her other children.

                                        June 7-10, 2010 Trial

       Lorraine Pipkins testified that she met the defendant while they were both employed
at the Wendy’s restaurant on Murfreesboro Road. After the two became “close,” the
defendant told Pipkins that she was pregnant, but, on February 10, 2006, the defendant
informed Pipkins that her mother “told her that she had . . . lost the baby, she wasn’t no
longer pregnant.” During the late summer of 2006, Pipkins and the defendant had started
working together at a Mrs. Grissom’s restaurant. While Pipkins and the defendant were at
work one day, Pipkins overheard “a little old lady” ask the defendant if she was pregnant.
The defendant responded, “[Y]ou got to be doing something to get pregnant,” which Pipkins
understood to mean that the defendant was not pregnant.

       Pipkins said that the defendant came to live with her about a month before the
victim’s birth. During that time, the defendant wore baggy clothing and did not appear to be
pregnant. The defendant had a white, four-door car at the time. The defendant suffered an
on-the-job injury to one of her fingers while employed at Mrs. Grissom’s, and her doctor
excused her from work until her finger healed. The defendant had a doctor’s appointment
on October 31, 2006, and arrived home between 4:00 and 4:30 p.m. as Pipkins was sitting
on the front porch awaiting trick-or-treaters. The defendant told Pipkins that she was “sick”
and “hurting” and went inside the apartment and sat down in the living room. The defendant
“kept moaning and groaning like . . . she was hurting real bad,” but she refused to go to the
hospital. Pipkins later noticed that the defendant had left the living room and gone into the
bathroom where she remained for about forty-five minutes. While the defendant was in the

        1
         The trial court did not allow the experts to be provided with information about the medical history
or death of Alexis Humphreys because she was unrelated to the victim.

                                                     8
bathroom, Pipkins’ daughter and grandchildren came to Pipkins’ apartment so that one of the
children could use the bathroom. The defendant, dressed in a towel, came out of the
bathroom and asked Pipkins’ daughter for “a pad.” The defendant then went into her
bedroom and put on some clothes before leaving the apartment between 7:30 and 8:00 p.m.
The defendant took her purse with her when she left, and Pipkins’ neighbor, Danny Gooch,
told Pipkins that the defendant had taken some towels with her. Pipkins said she did not see
or hear a baby that night. The next day, Pipkins noticed some blood on the toilet, the edge
of the sink, and bathtub, which she cleaned. Pipkins said she talked to the defendant about
a week later, and the defendant told her that she had a “busted” ovarian cyst but did not tell
her she had given birth to a baby.

        Latoya Pipkins,2 Lorraine Pipkins’ daughter, testified that she took her children trick-
or-treating at her mother’s apartment on October 31, 2006, between 4:00 and 5:00 p.m. She
did not see the defendant at that time. Latoya and her children returned to her mother’s
apartment between 8:30 and 9:00 p.m. and went inside. Latoya saw the defendant, who was
“still dressed,” go into the bathroom. Latoya’s daughter had to use the bathroom, but the
defendant would not come out. The defendant stayed in the bathroom for “at least forty-five
minutes or longer” and then stuck her head out the door and asked Latoya for a sanitary
napkin. Latoya could not see inside the bathroom when the defendant opened the door. She
did not hear or see a baby that night and left before the defendant came out of the bathroom.

       Danny Gooch testified that he met the defendant while she was working at the
Wendy’s restaurant. He said that he and the defendant had sexual relations and that the
defendant wore clothing when they had sex and did not appear to be pregnant. He and the
defendant went to a Dollar General Store on October 30, 2006, and the defendant purchased
a pregnancy test, the results of which were positive. At the time, Gooch believed the child
was his. The next day, October 31, Gooch took the defendant to her physical therapy
appointment for her injured finger and then to Walgreens to pick up a prescription. They
then went to Lorraine Pipkins’ apartment, and the defendant said that her stomach was
cramping. Gooch went outside and sat on the front porch with Ms. Pipkins. When Gooch
went back inside, the defendant was “just laying there crying” as if in pain. He offered to
take her to the hospital, and the defendant said, “[M]aybe later on.” The defendant left
Pipkins’ apartment sometime after 9:00 p.m., carrying her purse and a laundry basket full of
clothes and towels, and told Gooch that she was going to her mother’s house to wash the
clothes. Gooch watched the defendant as she placed the laundry basket in the front
passenger’s seat of her car and then drove off. He did not see or hear a baby that night.

        Gooch said that the defendant called him at about 4:00 the next morning and told him

        2
        Because these witnesses share the same last name, we will refer to Latoya Pipkins by her first name.
We intend no disrespect in doing so.

                                                     9
she was at Baptist Hospital and asked him to come there. When he arrived at the hospital,
the defendant told him she had delivered a baby. Although he did not believe that the victim
was his child, he signed her birth certificate because he and the defendant were “close” and
he “felt like that was [his] duty.” He said he did not know the identity of the victim’s father.
The defendant later asked him to move her car, and he noticed some bloody towels on the
driver’s seat. He found the defendant’s laundry basket, still containing clothes, in the trunk
of the car. The defendant asked him to take the clothes she wore to the hospital home and
wash them, but he did not do so because the bag containing the clothes was “full of blood.”
He said he threw away the defendant’s clothes and the bloody towels he found in her car.
When he asked the defendant where she had delivered the baby, the defendant said, “[W]e’ll
talk about it,” but they never discussed it again.

        Andre Phillips testified that he met the defendant in 2006 at the Buena Vista
Apartments where the defendant’s sister, Monica Ward, lived. He and the defendant dated
for about a month during the early part of 2006 and had sexual relations. At the time he
dated the defendant, she was living with her mother in Antioch. About two or three days
after the victim’s birth, he learned that the defendant had delivered a baby. He went to the
hospital to see the victim because he believed she was his child. When he later talked to the
defendant, she acknowledged that the victim was his child. He said he did not know that the
defendant was pregnant until after the victim’s birth.

       Monica Ward, the defendant’s sister, testified that the defendant was thirty-two years
old and had six children, including Stephen, who was born on December 2, 1998; Paul, who
was born in April 2000; and Jaylin, who was born in August 2001 outside of a hospital
setting. She did not know the defendant was pregnant with the victim and when she talked
to the defendant on October 31, 2006, the defendant did not say anything about being in
labor. The defendant called Ward from the hospital in the early morning hours of November
1, 2006, and told her she had given birth on October 31 but did not say where the victim was
born. The defendant told Ward that Andre Phillips was the victim’s father and asked her to
contact him. While Ward was at the hospital, she learned that Danny Gooch had volunteered
to sign the victim’s birth certificate listing himself as the father.

       Officer Johnny Lawrence with the Metropolitan Nashville Police Department testified
that he assisted Detective Sarah Bruner in collecting evidence at Pipkins’ residence on
November 22, 2006, and identified photographs he took of the residence. He also collected
three samples from stains on the wall and door of the bathroom that could have been blood.
The samples were submitted to the Tennessee Bureau of Investigation for analysis but tested
negative for blood. He said that household bleach could “clean [blood] up where you can’t
find anything.”




                                              10
        Dr. Steve Salyers, an orthopedic physician, testified that he treated the defendant for
her workers’ compensation injury. He first saw her on October 24, 2006, during which time
the defendant did not advise him of her pregnancy. He again saw the defendant on
November 7, 2006, and learned from Ms. Miller that the defendant had given birth. He
prescribed Hydrocodone for the defendant based on her complaint of pain during the October
24 visit and acknowledged that the prescription could have been filled on a different date.
On cross-examination, Dr. Salyers said that, in preparation for his trial testimony, he had
consulted an obstetrician and learned that Hydrocodone was considered a safe drug for the
third trimester of pregnancy.

        Cassandra Hester testified that in 2006 she was the care coordinator for the Neonatal
Intensive Care Unit (“NICU”) at Baptist Hospital in Nashville. She said that she had
“basically cared” for the victim and met with the defendant to discuss the circumstances
surrounding the victim’s birth. The defendant told Hester that she had given birth to the
victim at home in the toilet and did not provide any information about the victim’s condition
at the time of birth.

        Dr. Mary Jane Haynes, a neonatologist in the NICU at Baptist Hospital, testified that
she examined the victim between 3:15 and 3:30 a.m. on November 1, 2006. She observed
that the victim was “irritable . . . and very jittery. . . . [T]he baby was shaky and could not
be consoled easily. The baby was stiff. The tone was increased.” Dr. Haynes explained that
increased tone meant that the victim’s muscles were very rigid, or hypertonic. The victim
also had an increased heart rate, or tachycardia. Because the defendant’s drug screen was
positive for opiates, Dr. Haynes initially thought the victim was having drug withdrawal.
However, the victim’s drug screen was negative, and Dr. Haynes and fellow physicians
determined that the victim had suffered a hypoxic ischemic injury. The victim suffered
seizures, and her blood sugar was high, which indicated significant stress or injury. The
victim’s sodium was low, and Dr. Haynes explained that babies get low sodium, or
hyponatremia, from Syndrome of Inappropriate Antidiuretic Hormone (“SIADH”), which
“typically occurs with an asphyxiating event about three days after the event occurs.”

       Dr. Haynes said she spoke to the defendant between 3:15 and 4:25 a.m. regarding her
medical history and the circumstances of the victim’s birth. The defendant reported that she
had been pregnant four times and had delivered two children who were not in her custody.
The defendant also reported that she had little or no prenatal care and denied any drug use
with the exception of Oxycodone,3 which she had taken for the past two days for her finger
injury. As to the victim’s birth, the defendant gave Dr. Haynes the following account of
events:

        3
          Dr. Haynes said that her notes reflected that the defendant reported that she was taking Oxycodone,
rather than Hydrocodone. She said that both drugs are classified as opiates.

                                                     11
       She told me that she had delivered at home in the toilet. She had had some
       pain, went to the bathroom, had a normal bowel movement, then delivered in
       the toilet, passed out, woke up. And I’ve written here sometime between 8:00
       and 12:00 midnight. That’s when she told me she delivered, that she wasn’t
       sure what time it was because she didn’t know how long she had been passed
       out. She woke up, cut the umbilical cord. She could not tell me what she used
       to cut the umbilical cord. She could not tell me how long the baby had been
       in the toilet. She couldn’t tell me any of the circumstances other than the very
       vague details that I’m giving you. She told me that she tied the umbilical cord
       with a piece of gauze that she had on her injured finger. That’s one thing I
       don’t have written down, but I remember that because that was an unusual
       story for someone to tell me. She told me she drove herself to the hospital.
       That was about it. It was kind of difficult for me to talk to her. She appeared
       like she was high, like she was under the influence of drugs.

        Dr. Haynes said that the victim’s being born in the toilet “most definitely” would
cause asphyxia. Dr. Haynes said that the victim’s admission temperature was “ninety-six
something” and opined that a baby born in a toilet would have had a much lower
temperature. Because the victim was not born in the hospital, no Apgar score or blood gas
test could be performed to help determine if the victim had experienced an asphyxial event
from the birthing process. She acknowledged that the defendant brought the placenta to the
hospital but said that there was no evidence that the placenta had abrupted or torn away prior
to the delivery of the victim. The victim’s umbilical cord was also examined and determined
to be a short cord, which meant it was less likely that the cord had gotten tangled or knotted.

        The State posed a hypothetical question in which Dr. Haynes was asked to assume
that the birth history provided by the defendant was accurate, in that the defendant squatted
over the toilet thinking she was going to have a bowel movement but instead delivered the
victim in two pushes; that after the second push the defendant pulled the victim out and
placed her on her chest before passing out; and that later the defendant regained
consciousness to find the victim pink in color and crying vigorously, both before and after
she passed out. Dr. Haynes said nothing in that history suggested that an asphyxial trauma
occurred during the birthing process. Dr. Haynes said that a baby who suffers asphyxial
trauma in utero or during the birthing process was “usually hypotonic, floppy, non[-
]responsive, doesn’t breathe or irregular gasping kind of efforts,” which could require
resuscitation. According to Dr. Haynes, conditions that could compromise a baby during the
birthing process included the umbilical cord being wrapped around the baby’s neck or other
part of the body, which was more typical with long cords; the baby’s head being trapped in
the birth canal; the baby not being in the appropriate position to deliver; and the placenta
breaking loose. However, there was no evidence that any of those conditions had occurred

                                              12
and nothing in the history provided by the defendant to suggest that the victim suffered the
hypoxic injury a day or so before birth. The victim had no bruising or injuries consistent
with having been trapped in the birth canal. Dr. Haynes said that the victim’s MRI revealed
“changes that were characteristic of hypoxic-ischemic encephalopathy or an event that
occurred around the time of birth.” She explained that encephalopathy is abnormal brain
function and said that the victim’s brain injury was permanent. She said that the victim’s
MRI findings were “typical of an acute, sudden, severe episode of hypoxia.”

        Dr. Haynes said that if a baby suffered an asphyxial event in a hospital setting, the
baby could be treated with head cooling therapy, but it must be done within six hours of the
time of delivery. Any delay in seeking that type of therapy would compromise the welfare
of the baby and make the condition worse. She said that the most important medical finding
in terms of the timing of the victim’s injury was the SIADH, which occurred in response to
swelling of the brain. She explained that SIADH typically occurred within three days of the
injury and said that the victim’s sodium level was first noted to be low on November 3. She
said that a low sodium level is the first clue to indicate SIADH. Dr. Haynes acknowledged
that she had no way of determining exactly when the victim’s hypoxic injury occurred
because the victim was not born in the hospital.

       Wendy Parrish, a registered nurse at Baptist Hospital, testified that she obtained the
defendant’s medical history at 1:50 a.m. on November 1, 2006, and the defendant reported
that she had had two prior term deliveries and an abortion. The defendant also reported that
she learned of her pregnancy two months prior to November 1 and had been to the Waverly
Belmont Clinic twice.

        Cherie Hackney testified that she was a social worker at Baptist Hospital in 2006 and
met with the defendant on November 1, 2006. The defendant told Hackney that she gave
birth to the victim at home on the toilet, passed out for a period of time, and, when she woke
up, retrieved the victim from the toilet before driving herself to the hospital. The defendant
gave no information as to how the victim presented at the time of birth or after the defendant
regained consciousness. Hackney said that her notes reflected that the father of the victim,
“Danny,” was with the defendant at the hospital.

       Jimmy Smith, an emergency room nurse at Baptist Hospital in 2006, testified that he
was working the 7:00 p.m. to 7:00 a.m. shift on October 31–November 1, 2006, when an
unidentified woman came into the hospital around midnight and said there was a woman in
the parking lot who had delivered a baby in the car. Smith went outside and found the
defendant sitting in the driver’s seat of a white Ford Taurus in the last ambulance bay. The
defendant, who was dressed in a sweatsuit and smelled strongly of soap or perfume, indicated
that she had just given birth in the car in the parking lot, and Smith saw a newborn baby
wrapped in a towel in the passenger’s seat. The baby was not crying, made no movements,

                                             13
and “seemed lifeless.” He immediately took the baby into the hospital and gave the baby to
other nurses.

       Smith said that he then went back outside to tend to the defendant and noticed there
was no blood or “mess” that goes along with childbirth in the car. The defendant reported
that she knew she had been in labor, and when Smith asked her why she had not come to the
hospital sooner, she was “very evasive” and said “it was a personal matter.” Smith described
the defendant’s emotional affect as “an extremely flat affect. She showed . . . no real
emotion, either excitement or depression.” No one else was in the car with the defendant,
and Smith assisted her into a wheelchair. As he helped the defendant out of the car, he
noticed a “blood line” at “the crack of her bottom” and a small amount of blood, about two
inches by three inches, on the driver’s seat of the car. He said he would have expected a
larger amount of blood if she had in fact given birth in the car. With the defendant’s
permission, he moved her car from the ambulance bay to a parking lot. The defendant asked
him to retrieve the placenta from under the seat, and he located a plastic bag containing what
he believed to be bloody tissue but did not look inside the bag. He placed the bag on the
defendant’s lap and wheeled her inside the hospital to the labor and delivery department.

        Smith said that he gave a statement to Detective Sarah Bruner on January 9, 2007, and
said that the only difference between his recollection and the statement was that the statement
reflected that the defendant was holding the baby, but he remembered the baby was in the
passenger’s seat. He said he had no doubt that the baby was in the passenger’s seat.

        Virginia Thomas of the DCS testified that the defendant’s other children included
Stephan, who was born on April 15, 1995; Stephanie, who was born on November 13, 1997;
Steven, who was born on December 2, 1998; Paul, who was born on April 8, 2000; and
Jaylin, who was born in August 2001.

        Dr. Carol Cistola, an OB/GYN physician, testified that she examined the defendant
at the Waverly Belmont Clinic on September 15, 2006. The defendant was a walk-in patient
and reported that she had not received any prenatal care. The clinic records reflected that the
defendant had been advised of her pregnancy on March 16, 2006, and given an estimated due
date of November 15. The defendant also saw an internal medicine doctor at the clinic on
September 12 for low blood pressure. According to the medical history the defendant
provided to the internal medicine doctor, the defendant had been pregnant six times and had
five deliveries. However, the defendant told Dr. Cistola she had been pregnant eight times.
Dr. Cistola’s examination of the defendant showed no indication that the baby was going to
be born prematurely, and the baby’s heart rate was normal. The defendant left the clinic
without getting the recommended prenatal lab work done and did not return for follow-up
testing and treatment.



                                              14
       Dr. Cistola said that the defendant received treatment at the clinic three times in 1998
for another pregnancy. The defendant was hospitalized on September 26, 1998, for preterm
labor and had a premature delivery in December 1998. The defendant also received
treatment at the clinic for another pregnancy in 2000 but had only two prenatal visits
although the normal number of visits for a non-high-risk mother was thirteen. For a patient
who had a prior complicated pregnancy like the one the defendant had in 1998, the number
of prenatal visits would have been as many as were needed and could have been daily.

         Detective Sarah Bruner testified that she and another officer searched Pipkins’
residence on November 22, 2006, but found no indication of blood, and they were unable to
locate the defendant’s car or clothing she had worn the night of the victim’s birth. Detective
Bruner recovered ten pink pills in a bottle labeled prenatal care, which reflected that the
prescription was filled on March 16, 2006, and written for a quantity of thirty with four
refills.

        Detective Bruner said she later obtained the defendant’s cellular telephone records
which reflected a number of calls made to and from the defendant’s phone on October 31 and
November 1, 2006. The defendant provided no information that anyone other than she had
possession of her telephone on those days. The defendant gave Detective Bruner detailed
information regarding her prenatal care with Steven and Paul but did not discuss Jaylin.
Detective Bruner obtained the defendant’s Hydrocodone medication from Ms. Thomas and
placed it into evidence. She said that the prescription bottle contained thirty-eight pills and
that the paperwork accompanying the prescription reflected that forty pills were prescribed
and that the prescription was filled on October 31, 2006, at 5:57 p.m.

       Detective Bruner said she interviewed several witnesses, including Jimmy Smith.
Smith reported that the victim was on the defendant’s lap and that there was a towel in the
seat of the car where the defendant had been sitting. Smith did not indicate that the
defendant had reported giving birth in the car in the parking lot.

        Cheryl Gooch, a DCS case manager in 2006, testified that the department received a
referral concerning the victim on November 2, 2006. She was the initial case manager
assigned to the case and interviewed the defendant at the DCS office, prior to Virginia
Thomas’ interview at the hospital. The defendant reported that she had an injured finger for
which pain medication had been prescribed, but she did not inform the doctor that she was
pregnant. The defendant gave the medication to Gooch, and she turned it over to Thomas.
The defendant told Gooch she was about six or seven months along with her pregnancy
before she found out she was pregnant. Gooch said the defendant told her that Danny Gooch
had come by her residence before she gave birth to the victim, but no one was present during
the birth. The defendant reported that she delivered the victim at home on the toilet between
8:30 and 9:00 p.m. and put the baby on her chest before passing out for an unknown period

                                              15
of time. The defendant said she went to the hospital around midnight. Gooch asked the
defendant several times for information regarding her other children, but the defendant
refused to disclose their names.

        Dr. Kendall Graham, a neonatologist at Baptist Hospital, testified that he was one of
the primary physicians who began treating the victim on November 1, 2006. He described
the victim’s condition as “jittery and kind of irritable, difficult to console.” The doctors
initially thought the victim was going through drug withdrawal because of the defendant’s
positive drug screen and the history provided by the defendant that she had been taking a
narcotic for pain relief prior to delivery. However, during the next three days, the victim
began showing signs of seizure activity and SIADH, which was common in infants who had
suffered an asphyxia event. The doctors realized the victim was not suffering from a narcotic
withdrawal but was showing symptoms consistent with having suffered some type of
asphyxia around the time of birth. An EEG performed on the victim on November 3
revealed seizure activity, and an MRI performed on November 14 or 15 showed that the
victim had suffered injury to the deep parts of the brain. Dr. Graham said that the pattern of
the victim’s brain injuries was consistent with birth asphyxia.

       Dr. Graham said that infants who suffer a serious hypoxic injury during the birthing
process do not cry vigorously. He said that the victim had suffered “a mild to moderate”
permanent hypoxic injury “very near the time of birth.” Based upon the information the
doctors had, there was no definitive way to determine whether the victim’s hypoxic injury
occurred before birth, at birth, or after birth. However, Dr. Graham said that he was
“comfortable” in saying that the victim’s injury occurred within a few hours before birth
through the time of birth to a few hours afterwards. He said that the defendant’s use of
Hydrocodone the night of the victim’s birth did not cause the victim’s hypoxic injury.

        Dr. Robert Reece’s trial testimony reiterated that given at the pretrial hearing, and he
acknowledged that he had been retained by the State to consult in the case. He further said
that when evaluating whether a child suffered an asphyxial event, he looked to a broad
spectrum of information, including information regarding the child’s siblings, social service
investigations of the family, prior police investigations, and prior medical histories of the
family to determine if there were any predisposing factors for certain medical conditions.
He reviewed the victim’s medical records from Baptist Hospital, the police reports, social
service reports, the prenatal history provided by the defendant, and the medical histories
involving other children and agreed with the medical assessment that the victim sustained
a hypoxic injury. He said it was “difficult” to determine the time of the injury but agreed
with Drs. Haynes and Graham that it occurred at or around the time of birth. Dr. Reece said
that he reviewed all of the historical information provided by the defendant and observed that
“the history was changing. There were several different accounts of what happened,” which
was “a big red flag” to him. Dr. Reece said that he had “a very strong feeling” and had

                                              16
determined to a reasonable degree of medical certainty that the victim’s injury was the result
of an induced suffocation. He related the factors he considered in reaching that conclusion:

       [T]he fact that the baby was, first of all, born in a toilet, then cried immediately
       after the baby was born according to the mother’s account. Then there was a
       passing out of the mother according to her account during which time we don’t
       know what was going on with the baby. Then there was no call for help, no
       call to 911 to EMS to come and help with the baby. And then there was an
       almost four hour delay between the time that we are told the baby was born
       and the arrival at the emergency department. And then even at the emergency
       department there was a delay of sitting in the car for a good period of time and
       being discovered there by one of the nurses from the hospital. So all of this
       makes me concerned about what was going on in that interval.

       Dr. Reece said that the defendant’s giving birth at home and not seeking medical
assistance in a timely fashion suggested that “there wasn’t a whole lot of attention being
given” to the victim. In evaluating child abuse and neglect cases, a delay in seeking medical
care was “[a]bsolutely” something he saw frequently. Dr. Reece said that the defendant’s
delay in seeking medical care, failure to call EMS at the time of delivery, “spotty” prenatal
care, and failure to make arrangements for a hospital delivery constituted “a fairly neglectful
approach to a newborn baby.”

         Dr. Reece said he had delivered approximately 150 babies and had been present when
birth asphyxia occurred. In those situations, the newborns usually had a “weak cry if a cry
at all.” Nothing in the history provided by the defendant or in the medical findings indicated
that the victim suffered the asphyxial trauma prior to birth or during the birthing process.
There was no meconium on the victim’s skin which indicated that the victim was “born
healthy and alive and vigorous.”

        Dr. Reece identified a policy statement from the American Academy of Pediatrics
entitled Distinguishing Sudden Infant Death Syndrome From Child Abuse Fatalities,
published in July 2006, which was admitted into evidence.

         Clechette Frazier-Weir, the victim’s foster mother, testified that the victim came into
her care on November 14, 2008, at the age of two, and weighed only fifteen pounds, could
not crawl, walk, or talk, and could “[b]arely” sit up on her own. She said that at the time of
trial, the victim weighed 27.14 pounds, had cerebral palsy, and was developmentally delayed.
The victim was able to walk with the aid of special shoes and a K-walker when in crowds
and could talk in complete sentences. Ms. Frazier-Weir explained that she “constantly”
worked with the victim and described the type of care the victim needs:



                                               17
              In a day we do over eighty exercises a day. Feeding was taking like an
       hour and a half . . . for her to really feed herself. To get all of her therapy at
       home and then going to physical therapy and getting it done – because what
       they implement at Vanderbilt I take home and just keep adding to it. So it’s
       a day’s work.

In addition, the victim received speech therapy and had to see a neurologist and orthopedic
doctor annually. Ms. Frazier-Weir said that she planned to adopt the victim.

       The defendant elected not to testify and presented no proof. The jury convicted her
of aggravated child neglect as charged in Count 1 of the indictment and of the lesser-included
offense of reckless aggravated assault in Count 2, which the trial court merged with the
neglect conviction.

      At the sentencing hearing, Ms. Frazier-Weir testified that the victim’s doctors had
informed her that the victim would always need assistance and would never be able to live
independently.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The defendant contends that the evidence is insufficient to support her conviction for
aggravated child neglect, charged in Count 1, because it does not show beyond a reasonable
doubt that her alleged neglect resulted in serious bodily injury to the victim or that she knew
the victim was injured, and that, as to both Counts 1 and 2, the State failed to establish she
was criminally responsible for the victim’s brain injury, i.e. that “some act or failure by [the
defendant] actually caused [the victim’s] injury.”

        In assessing these claims, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after
viewing 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of
fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State

                                              18
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

                This well-settled rule rests on a sound foundation. The trial judge and
         the jury see the witnesses face to face, hear their testimony and observe their
         demeanor on the stand. Thus the trial judge and jury are the primary
         instrumentality of justice to determine the weight and credibility to be given
         to the testimony of witnesses. In the trial forum alone is there human
         atmosphere and the totality of the evidence cannot be reproduced with a
         written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        As we have set out, the defendant was tried on Count 1, where she was charged with
and convicted of aggravated child neglect, and Count 2, where she was charged with
aggravated child abuse and convicted of reckless aggravated assault, which then was merged
into the conviction for Count 1. The State provided the following information in response
to her request for a bill of particulars as to these two charges:

         Count[] 1 – Aggravated Child Neglect. Alleges defendant engages in an
         ongoing course of conduct in neglecting welfare of [the victim] including
         failing to seek prenatal care, concealing pregnancy, using a narcotic drug
         within hours of delivering, delivering [the] baby unassisted outside of a
         hospital setting, depriving victim of oxygen, and delaying taking [the] baby to
         [the] hospital. As a result of this the victim sustains hypoxic and ischemic
         injury to the brain which results in death of brain tissue. Victim also
         experiences transient tachypnea, hyponatremia, abnormal EEG’s and ongoing
         seizures.4

         Count[] 2 – Aggravated Child Abuse. Alleges defendant knowingly deprives


         4
            The State acknowledges on appeal that there appears to be no judicial decision in Tennessee regarding a
defendant’s “calculated and extended effort to neglect the victim’s existence – both in utero and after birth,” as alleged
in the bill of particulars regarding Count 1 of the indictment. Our child abuse and neglect statute has been specifically
held not to extend to a fetus, as this court discussed in Tabitha Ann Trice v. State, No. M2006-01051-CCA-R9-CO, 2009
W L 29926 (Tenn. Crim. App. Jan. 6, 2009). Thus, the statute does not criminalize the defendant’s acts in concealing
her pregnancy, failing to seek prenatal care, and otherwise attempting to “negate” the victim’s existence while still in
utero.

                                                           19
       the victim of oxygen after giving birth. As a result of this the victim sustains
       hypoxic and ischemic injury to the brain which results in death of brain tissue.
       Victim also experiences transient tachypnea, hyponatremia, abnormal EEG’s
       and ongoing seizures.

                               A. Aggravated Child Neglect

        In our review of the defendant’s conviction for aggravated child neglect, we first note
our supreme court concluded in State v. Dorantes, 331 S.W.3d 370, 385 n.15 (Tenn. 2011),
that, as a result of the 1998 amendment to Tennessee Code Annotated section 39-15-402,
“aggravated child abuse and aggravated child neglect [are] separate offenses.” Additionally,
in State v. Mateyko, 53 S.W.3d 666, 671-72 (Tenn. 2001), the court explained that a
conviction for child neglect requires that the State show “the defendant’s neglect produced
an actual, deleterious effect or harm upon the child’s health and welfare.” Relying on these
cases, the defendant argues that the evidence is insufficient to sustain her conviction for
aggravated child neglect because the State failed to prove beyond a reasonable doubt that her
alleged neglect itself resulted in serious bodily injury to the victim or that she knew the
victim was injured.

       Aggravated child neglect occurs when a person “knowingly, other than by accidental
means, . . . neglects a child under eighteen (18) years of age, so as to adversely affect the
child’s health and welfare,” and serious bodily injury results. See Tenn. Code Ann. §§
39-15-401(a), -402(a)(1) (2006). “Serious bodily injury” is defined as bodily injury
involving: “(A) [a] substantial risk of death; (B) [p]rotracted unconsciousness; (C) [e]xtreme
physical pain; (D) [p]rotracted or obvious disfigurement; or (E) [p]rotracted loss or
substantial impairment of a function of a bodily member, organ or mental faculty.” Id. §
39-11-106(34).

      Previously, we have set out testimony of medical experts relevant to the defendant’s
convictions. We will review testimony relating to this issue.

        As we have set out, Jimmy Smith, an emergency room nurse at Baptist Hospital in
2006, testified that, as he was working his shift on October 31-November 1, 2006, around
midnight he learned that a woman was in a car in the parking lot, where she had given birth.
He went outside and located the defendant sitting in the driver’s seat of a vehicle, and she
indicated she had just given birth in the parking lot. He saw a newborn baby, who “seemed
lifeless,” wrapped in a towel on the passenger’s seat. He immediately took the baby into the
hospital. When he returned to the defendant’s vehicle, she was “evasive” as to why she had
not come into the hospital earlier and exhibited “no real emotion, either excitement or
depression.”



                                              20
        The State presented expert proof as to the effect of the delay of the defendant in
seeking medical assistance for the victim. Dr. Mary Jane Haynes was questioned regarding
specific medical treatment the victim could have received had she been taken to the hospital
in a timely fashion after her birth and the effect of the delay:

       Q. Dr. Haynes, just from the standpoint of the injury that you did see would
       delays in development, delays in speech, delays in coordination be consistent
       with this type of brain injury?

       A. Yes, it would. You could expect anything from muscular problems, . . .
       such as cerebral palsy to weakness. You could see thinking problems, mental
       retardation, behavior problems. It’s a whole spectrum of disabilities that it’s
       impossible to predict until the baby is expected to meet the milestones what’s
       going to happen.

       Q. Now, you mentioned that we’re all different, all unique. Does the severity
       of the hypoxic event, its duration, have any impact on the severity of the
       underlying injury to the brain?

       A. It requires a certain degree of hypoxia to get a brain injury, and babies who
       have a more significant hypoxic event, if the hypoxia is for a longer duration,
       those babies are more likely to have more damage. They will have more
       damage. But there’s not a recipe or a formula that says that if the baby is
       without oxygen for this many minutes or for this many hours that it’s going to
       have . . . it depends on the degree. It’s not an exact science.

       Q. Okay. Is there any way to tell from the MRI here how long or how long
       of a period [the victim] had a hypoxic injury for in order to get that injury that
       was seen?

       A. The MRI findings are typical of an acute, sudden, severe episode of
       hypoxia.

       Q. Okay. Now, you’ve used a number of terms. But you’ve also talked about
       sort of this spectrum of severity.

       A. Uh-huh.

       Q. Some children who suffer [a] hypoxic event, do they die?

       A. Yes, they do.

                                              21
Q. Some who suffer [a] hypoxic event have little to not [sic] severe
consequences?

A. Yes.

Q. And then some fall in that in between spectrum?

A. That’s true.

Q. Okay. Assuming that we had two similarly aged children shortly after
birth who suffer the same duration of hypoxic injury, are those two children
going to have the same manifestations or same consequences?

A. No, they’re not. They may, but not necessarily.

Q. So a hypoxic event of two minutes of duration, for example, of baby A and
baby B can produce different results in each?

A. Yes.

Q. Now, you’ve talked about cases in which you’ve been involved where
there was an asphyxial trauma at the time of birth or during the labor process,
and you talked about babies that came out and presented with certain pictures.
One of the things I think you talked about is needing resuscitation. Do some
of those babies come out and they’re essentially comatose?

A. Yes.

Q. Did [the victim], when you examined her on the early morning hours of
November 1st, show any signs of being depressed, lethargic, or comatose?

A. No, she was hypertonic and jittery and irritable, things that are consistent
with a basal ganglia or a thalamic injury.

Q. What is the fact that she is not comatose say in terms of the severity of the
injury?

A. It may have been a more mild injury. It may have been an injury of shorter
duration. But it’s impossible to say. Just as an example, I deal with a lot of
very, very small babies, very immature babies, some babies that are born that
just are simply too small or too young to resuscitate. Sometimes we leave

                                      22
these babies with their mothers because the mothers want to hold the babies.
There’s nothing we can do for the baby. And the baby may be blue with a
very low heart rate and essentially no respiratory effort, and then in fifteen
minutes the baby may be not so blue, breathing a little bit. And then the baby
will die. But . . . babies can have . . . a not so great start and then kind of self-
recover.

Q. Is there a reason why an MRI in a situation like this should be done at a
later point in time?

A. Because the changes are evolving, the changes aren’t static.

Q. Would you describe what you mean by that and how that works in a case
like this?

A. Okay. An MRI that you do early after delivery when the event has
occurred right around the time of delivery may not show the injury. It may –
it takes a while for the injury to develop and become apparent on the MRI.

Q. You described that this is a finding that’s consistent with an acute hypoxic
event?

A. Yes.

Q. All right. What happens – so the injury takes place at point A, and you’re
saying at or around the time of birth or after birth. What happens to the brain
as it evolves from that initial insult? Let me ask it this way.

A. Okay.

Q. Are there further consequences from that initial insult that occur because
of the insult in terms of how that brain either becomes necrotic or has other
types of chemical changes or biological changes from the original hypoxic
insult?

A. Well, it depends on – again, that’s going to depend on the baby. I’m not
sure . . . what you’re asking. But, . . . there are different things that we can do.
You know, it’s very cutting edge technology. But babies who are asphyxiated
– it depends on the conditions that they’re maintained under. The current
therapy is cooling, head cooling. Which this baby wasn’t born in the hospital,
so that didn’t happen. But it depends on all the factors with the baby as to

                                         23
       what the outcome is, as to what changes occur in the brain. If it’s the acute
       immediate injury, then apoptosis occurs. The cells are programmed to die.
       But ongoing hypoxia could cause a necrotic sort of picture.

      Dr. Haynes then explained the purpose of cooling the brain of a baby who has suffered
an asphyxial event:

       Q. [L]et’s go back to that scenario. Assuming that a baby is born in the
       hospital setting and you know based on the monitoring of the mother and the
       baby that an asphyxial event has taken place, you said that one of the
       treatments that can be done is cooling?

       A. Yes.

       Q. Why is that done, and what is the purpose of doing that?

       A. It seems to slow down the program cell death, the apoptosis. The early
       studies show that there’s much better outcome when babies undergo head
       cooling after they’ve had an asphyxiating event. But they have to be cooled
       within six hours of the time of delivery.

       Q. So you have a very narrow window of time that you’re dealing with that?

       A. Yes, it’s six hours.

       Q. So a situation in which an asphyxial event takes place outside of a hospital
       setting it would be important for that child to be seen in the emergency room
       or the Neonatal Intensive Care Unit to evaluate and look for the potential to
       provide that type of therapy?

       A. Yes.

       Q. Delays in seeking that therapy would potential[ly] compromise the welfare
       of that baby?

       A. Yes.

       We will review the authorities relied upon by the defendant to support her claim that
the State failed to show “her neglect of the victim resulted in serious bodily injury beyond
that caused by her reckless aggravated assault of the victim.”



                                             24
        In State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053,
at *5 (Tenn. Crim. App. Mar. 16, 2011), the defendant burned the palm of the child victim
with a cigarette, resulting in convictions for both aggravated child abuse and aggravated child
neglect. The injury was treated with Neosporin ointment and a band-aid, which a physician
acknowledged was the correct treatment. While this court sustained the conviction for
aggravated child abuse, we reversed that for aggravated child neglect, concluding that “[t]he
record is devoid of any evidence that the victim suffered further harm or injury subsequent
to the initial abuse.”         Id. at *6. See State v. Marcos Acosta Raymundo, No.
M2009-00726-CCA-R3-CD, 2010 WL 4540207, at *15 (Tenn. Crim. App. Nov. 10, 2010)
(concluding that the defendant’s delay in seeking help for the victim until she collapsed did
not have an actual, deleterious effect on her health because the victim’s collapse was caused
by the abuse, not the delay); State v. John Barlow, No. W2008-01128-CCA-R3-CD, 2010
WL 1687772, at *11 (Tenn. Crim. App. Apr. 26, 2010) (holding the evidence failed to
demonstrate that the defendant’s delay in seeking medical care for the victim caused
additional brain damage when medical experts testified generally to the risk of continued
swelling of the brain but the evidence failed to show an actual, deleterious effect on the
victim caused by the delay), perm. app. denied (Tenn. Sept. 24, 2010); State v. Denise
Wiggins, No. W2006-01516-CCA-R3-CD, 2007 WL 3254716, at *5 (Tenn. Crim. App.
Nov. 2, 2007) (evidence showed that the burn from an iron, rather than the defendant’s
failure to seek medical help, caused the victim’s serious bodily injury), perm. app. denied
(Tenn. Mar. 3, 2008); and State v. Vernita Freeman, No. W2005-02904-CCA-R3-CD, 2007
WL 426710, at *8-9 (Tenn. Crim. App. Feb. 6, 2007) (“proof established that it was the
[defendant’s] acts of abuse which produced the serious bodily injury to the minor victim” and
“[a]t no time . . . did the prosecution attempt to distinguish the separate counts of child abuse
and child neglect based upon spatial or factual differences”).

        The situations in these cases and others relied upon by the defendant in this regard
contrast with those in which the victims sustained injuries from both an initial injury and a
delay in seeking treatment, aggravated child abuse and aggravated child neglect, allowing
both convictions to stand.           See State v. Lakeisha Margaret Watkins, No.
M2009-02607-CCA-R3-CD, 2011 WL 2682173, at *18-25 (Tenn. Crim. App. July 8, 2011)
(affirming conviction for aggravated child neglect when the defendant’s failure to seek
medical attention for infant’s multiple contusions to his face and brain and also a concussion
until after victim stopped breathing caused injury to his brain from the lack of oxygen and
the defendant’s “failure to seek medical treatment after the first seizure posed a substantial
risk of death”), perm. app. denied (Tenn. Nov. 15, 2011); and State v. Christopher Earl
Watts, No. M2009-02570-CCA-R3-CD, 2012 WL 1591730, at *19 (Tenn. Crim. App. May
3, 2012) (defendant’s conviction for aggravated child neglect was affirmed, the proof
showing that, after the fifteen-month-old victim had suffered a seizure in the morning, he and
his co-defendant, the victim’s mother, did not seek medical attention until the victim had
stopped breathing that evening, the delay resulting in permanent brain injury), perm. app.

                                               25
denied (Tenn. Sept. 21, 2012). The situation in the present appeal is much like those in
Watkins and Watts.

        We have set out substantial testimony from which a reasonable jury could have
concluded that the defendant’s actions caused separate serious injuries to the victim and that
she knew the victim was injured but delayed seeking medical assistance. Lorraine Pipkins,
with whom the defendant lived at the time of the victim’s birth, said that, the evening of the
birth, the defendant “kept moaning and groaning like . . . she was hurting real bad” and
refused to go to a hospital but, instead, went into the bathroom, where she remained for about
forty-five minutes. She came out of the bathroom dressed in a towel, asked for a sanitary
napkin, dressed herself, and left the apartment between 7:30 and 8:00 p.m. Nurse Jimmy
Smith testified that he encountered the defendant, sitting in the driver’s seat of her vehicle
at the Baptist Hospital parking lot, and saw the victim, who “seemed lifeless,” in the
passenger seat.

       Latoya Pipkins, Lorraine Pipkins’ daughter, testified that, when she asked to use the
bathroom that evening, the defendant would not come out. Neither she nor her mother saw
or heard a baby that night. The next morning, there was blood on the toilet, sink, and
bathtub. Danny Gooch testified that the defendant left Pipkins’ apartment around 9:00 p.m.
that evening carrying a laundry basket full of clothes and towels, saying that she was going
to her mother’s house to wash clothes. She put the basket in the front seat of her car and
drove off. He, also, neither saw nor heard a baby that night. At around 4:00 a.m. the
following morning, he went to Baptist Hospital in response to the defendant’s telephone call,
and she told him that she had given birth. Later, when he moved the defendant’s car, he saw
the defendant’s clothes, which were “full of blood,” as well as bloody towels. He threw
away these items, as well as the defendant’s bloody clothes. We have set out in detail the
testimony of Dr. Mary Jane Haynes, who testified that the welfare of a baby suffering a
asphyxial event, as did the victim, would be compromised unless treated with cooling
therapy within six hours of delivery. From this, and the other testimony detailed in this
opinion, we conclude that a reasonable jury could have found that the defendant knowingly
neglected the newborn victim so as to adversely affect her health and welfare, causing
serious bodily injury, in that she was secretive, both in giving birth and taking the victim out
of Pipkins’ house, and in that she delayed seeking medical assistance, resulting in severe
permanent injuries to the victim. Accordingly, the proof supports the defendant’s conviction
for aggravated child neglect.

                             B. Reckless Aggravated Assault

       This offense is committed when a person recklessly commits an assault and causes
serious bodily injury to another. See Tenn. Code Ann. § 39-13-102(a)(2)(A) (2006).
“‘Reckless’ means that a person acts recklessly with respect to circumstances surrounding

                                              26
the conduct or the result of the conduct when the person is aware of, but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the accused person’s standpoint[.]” Id. § 39-11-106(a)(31).
Thus, to sustain the conviction for reckless aggravated assault, the State was required to
prove beyond a reasonable doubt that the defendant was aware of, but consciously
disregarded, a substantial and unjustifiable risk that her actions surrounding the birth of the
victim caused serious bodily injury to the victim.

      As we have set out, the State’s bill of particulars stated that the defendant committed
aggravated child abuse by “knowingly depriv[ing] the victim of oxygen after giving birth.”

       Dr. Robert Reece, the State’s child abuse expert, testified that the victim’s injury
occurred at or around the time of birth. He further said he had determined to a reasonable
degree of medical certainty, due to the circumstances surrounding the defendant’s pregnancy,
her changing stories, the manner in which she chose to give birth, and her delay in seeking
medical care for the victim, that the victim’s injuries were the result of an induced
suffocation:

       Q. Ultimately, Dr. Reece, did you form an opinion to a reasonable degree of
       medical certainty as to whether or not you believe [the victim] sustained an
       asphyxial trauma as a result of accidental or non accidental or natural means?

       A. Yes.

       Q. And what was that conclusion?

       A. My conclusion was that this did not occur accidentally, that it was probably
       induced.

       Q. And when you mean “probably,” what do you mean by that?

       A. More likely than not. I think there was a very strong – I have a very strong
       feeling that this actually was an induced suffocation.

       Q. And in formulating your opinions[,] what information are you focusing on
       in that respect?

       A. Well, the fact that the baby was, first of all, born in a toilet, then cried
       immediately after the baby was born according to the mother’s account. Then

                                              27
there was a passing out of the mother according to her account during which
time we don’t know what was going on with the baby. Then there was no call
for help, no call to 911 to EMS to come and help with the baby. And then
there was an almost four hour delay between the time that we are told the baby
was born and the arrival at the emergency department. And then even at the
emergency department there was a delay of sitting in the car for a good period
of time and being discovered there by one of the nurses from the hospital. So
all of this makes me concerned about what was going on in that interval.

....

Q. Is there anything about that scenario then that supports a suggestion that
the asphyxial trauma is occurring during the birthing process itself?

A. It would mitigate against that.

Q. Meaning it lessens the likelihood?

A. Yes.

Q. And is there any information that suggests that the cord was tied up or
wrapped around the baby that might cause injury?

A. No, there was something actually in the record about this being . . . a short
umbilical cord, so that the possibility of this being wrapped around the neck
seemed much less than it would in a longer cord baby.

Q. Was there any medical information in terms of the evaluation of the
placenta or the mother’s uterus that suggested the baby was compromised in
utero or prior to birth?

A. No, the placenta was fine.

....

Q. Dr. Reece, did you form an opinion to a reasonable degree of medical
diagnosis in this case as to whether or not [the victim] sustained hypoxic injury
as a result of neglect [sic] behavior?

[A.] Yes.



                                       28
       Q. What information did you use in formulating that opinion?

       A. Well, the things that we’ve been talking about, the delay in seeking
       medical care, the failure to call EMS at the time of the delivery. Going back
       to the prenatal care, which was spotty at best. The diagnosis was made of
       pregnancy, I think it was in March, and then there was no other visit until a
       couple of weeks prior to the delivery. And there w[ere] no arrangements made
       for a hospital delivery. So that the whole process was one of what I would
       consider a fairly neglectful approach to a newborn baby.

       Q. . . . In your opinion is the condition of the baby having hypertonia within
       – or at 3:30 a.m. on the day of admission anything that points to a conclusion
       that this baby had to have sustained the asphyxial trauma prior to birth?

       A. No.

       Q. From your perspective is there any medical – based on all the consideration
       of the medical information that you’ve evaluated, the historical information
       that you’ve evaluated in this case, and the circumstances surrounding this
       birth, is there anything that points to this being something other than an injury
       occurring as a result of child abuse or child neglect?

       A. I don’t see it.

       Dr. Kendall Graham testified that the pattern of the victim’s brain injuries was
consistent with birth asphyxia, which occurred “very near the time of birth.” Although he
was “comfortable” in saying that the injury occurred during the period from a few hours
before birth to a few hours afterwards, he testified that there was no definitive way to
determine when exactly it occurred during this period.

         Dr. Mary Jane Haynes testified that being born in the toilet “most definitely” would
cause the victim to suffer asphyxia, but she also said that she would expect a baby born in
a toilet to have a much lower temperature than the victim’s temperature upon admission. She
stated that there was no evidence that the placenta had abrupted or torn away prior to the
delivery, of the umbilical cord’s having wrapped around the victim’s neck during the birthing
process, or of the victim’s head having been trapped in the birth canal, all of which would
suggest that the hypoxia did not occur prior to or during the birth. However, because the
victim was not born in a hospital, Dr. Haynes was unable to determine exactly when her
hypoxic injury occurred. Dr. Haynes additionally testified, as we set out more fully in our
consideration of the evidence as to the aggravated child neglect conviction, that the victim
could have received head cooling therapy for up to six hours following her birth and that any

                                              29
delay in administering that treatment would compromise the welfare of the baby and make
the condition worse.

        We have set out the elements of the offense of reckless aggravated assault, which was
an included offense in Count 2. Based upon the testimonies of the State’s expert witnesses,
we conclude that a reasonable jury could have determined that the victim’s initial injuries
were caused by the defendant’s reckless conduct amounting to an assault at birth, resulting
in serious bodily injury to the victim, and, thus, that the defendant committed the offense of
reckless aggravated assault. This claim is without merit.

                                 II. Election as to Count 2

       As to Issues II, III, and IV, the defendant relies upon closely related arguments, all
based upon her view that “the State’s mistake . . . was in arguing that the jury could find [the
defendant] guilty of a single offense of aggravated child abuse using any of these ‘different’
and ‘multiple scenarios’ of abuse,” the scenarios consisting of the allegations in the bill of
particulars as to aggravated child neglect. In our review, we first will determine whether we
agree that the “mistake” had the effect claimed by the defendant.

       The indictments, as detailed in the bill of particulars, charged the defendant with
aggravated child neglect, Count 1, consisting of a multi-act “ongoing course of conduct,”
ranging, roughly chronologically, from “failing to seek prenatal care” to “delaying taking
[the] baby to the hospital.” This conduct included “depriving [the] victim of oxygen.” By
contrast, the aggravated child abuse charge, Count 2, consisted of the single act of
“knowingly depriv[ing] the victim of oxygen after giving birth.”

       We will set out the relevant portion of the State’s closing argument to review the
defendant’s claim in context, putting in italics the sentence upon which she relies as
overriding the bill of particulars so that aggravated child abuse was no longer based upon
the single act of “knowingly depriving” the victim of oxygen but, instead, upon the same,
multiple acts as aggravated child neglect:

       [W]hat’s the evidence of neglect? Her failure to go to prenatal visits, her
       failure to follow through, her hiding her pregnancy? All of that behavior
       reflects her knowledge and her intent to, in fact, engage in neglectful behavior.
       And it follows through all the way up until the point in time where Jimmy
       Smith walks out and collects that baby. Because that neglect is an ongoing
       course of conduct here. What do we know about that behavior? We know
       from moment one there was never any intention that that baby be born in a
       hospital. [The defendant] made every decision along the lines to avoid that
       scenario despite the fact that she knew that on prior occasion she had given

                                              30
       birth outside of a hospital setting, that on a prior occasion she had a pregnancy
       that required her to be hospitalized for two months, that despite the advice to
       follow through with prenatal care and make arrangements for that she
       deliberately, intentionally, knowingly chose to do that. Why did she do that?
       I can’t give you the answer. But the acts reflect that intention. The acts reflect
       that knowledge.

               So what are the scenarios for neglect? Well, there are multiple. She
       neglected that welfare of that child under one scenario by simply having a
       baby outside of a hospital setting knowing what that risk was and creating that
       environment. Under one scenario, the scenario she gives to Dr. Haynes, she
       gives birth in a toilet. And Dr. Haynes tells you that in and of itself could
       have produced this asphyxial trauma. Under another scenario she neglects the
       welfare of that baby by placing the baby up against her chest and passing out,
       positional asphyxia. That’s certainly a possibility in this case. A third one,
       she puts the baby in a clothes basket to secrete the baby and carries it outside.
       Positional asphyxia there? Again, a possible scenario. And the fourth
       possible scenario, of course, is that she deliberately smothers that baby,
       whether to stop it from crying or for some other even more sinister purpose.
       And then finally the last scenario that the very act of delaying taking that child
       to the hospital involves the additional infliction of serious bodily injury. The
       failure to give information about what happened surrounding that birth
       deprives that child of that very brief window of opportunity when that child
       might have been helped. Six hours in which it could be cooled on the brain.
       And Dr. Haynes told you that that worsens this child’s condition. Under any
       of those scenarios the defendant is guilty of aggravated child abuse or
       aggravated child neglect. (emphasis added).

               Aggravated child abuse is not an ongoing behavior. It is a specific
       point in time. But, again, the behavior here on that night reflects that this
       happened other than by accidental means. It did not occur during the birth.
       There is not one shred of medical proof that substantiates the version that they
       want you to accept, that somehow, some way this happened during the
       birthing process. Not one scintilla of evidence. Sure, is it possible out there
       in the realm of medical potential? Every doctor that walked into this
       courtroom told you, yes, it is. But is that a reasonable doubt in this case when
       there is no medical evidence to support that? I submit that there is not.

       Thus, for her argument to succeed as to Issues II, III, and IV, the defendant relies
upon her view that, by this italicized sentence, the State abandoned the claim of its bill of
particulars as to aggravated child abuse and adopted the multi-claims for aggravated child

                                              31
neglect. She does not consider the possibility that the State simply made an errant comment
when moving from a discussion of the “scenarios” of acts constituting aggravated child
neglect to that which was the “specific point” in time she committed aggravated child abuse.
Her arguments as to Issues II, III, and IV of her brief are predicated solely upon this view.

       As to her analysis on appeal, we note that the defendant did not object as the
questioned statement was made during the rebuttal argument or complain that the State was
taking a position contrary to the bill of particulars. Further, she made no request for a
curative instruction, either during the State’s argument or at the conclusion of the trial.
Accordingly, as we will explain, we disagree with the basic assumption of this argument.

       We have several reasons for concluding that the State’s comment was an errant
statement. First, in the relevant passages of the transcript, the State was arguing as to the
several acts which constituted child neglect, ranging from in utero lack of care to delaying
seeking medical treatment. During the references to aggravated child neglect, the State
continued to use the word “scenarios” and tracked the allegations of the bill of particulars.
As the State was moving then to arguing that the evidence showed the defendant had
committed aggravated child abuse, the prosecutor stated that, under the scenarios outlined,
the jury could convict the defendant of aggravated child neglect or aggravated child abuse.
The defendant did not make a contemporaneous objection to what would appear to have
been a total reversal of the specifics of the bill of particulars, nor ask for a curative
instruction either then or later.

        To support her argument, the defendant relies upon statements of the trial court and
the prosecutor that the two counts consisted of the same act or acts committed in alternative
fashions. Responding to the defendant’s request that the two charges required that an
election be made, the prosecutor stated that they presented “alternative theories,” and the
trial court responded, “Sort of the same thing as a first degree murder, either premeditated
or felony murder as being alternatives.” The defendant’s interpretation of these statements
does not consider the fact that the two counts shared the claim the defendant had deprived
the victim of oxygen, with this being the sole allegation in the bill of particulars as to the
child abuse charge and one of a series as to child neglect. The record does not show whether
the exchange between the State and the trial court was recognizing the allegation common
to both counts or as the defendant has interpreted it. Accordingly, we conclude that this
interchange, while relevant, does not necessarily support the defendant’s argument.

        Supporting her position on this issue, the defendant relies on the holding in State v.
Derrell F. Nunn, Sr. & Jamila Nunn, No. E2007-02333-CCA-R3-CD, 2009 WL 4790211,
at *27 (Tenn. Crim. App. Dec. 14, 2009), perm. app. denied (Tenn. May 12, 2010), to argue
that the State should have been required to elect which of the several acts was the basis for
the Count 2 charge of aggravated child abuse. In Derrell F. Nunn, the indictment “charged

                                             32
that the Defendants committed the offense of child abuse ‘on or before September 5, 2002’
[and, at the trial] [t]he state presented evidence that the victim had older injuries, occurring
before that date, as well as a new brain injury on that date.” Id. Thus, the court concluded
that the State should have made an election as to which of the “multiple injuries” was the
basis for the charge of aggravated child abuse. This holding is relevant only if we accept the
defendant’s interpretation of the State’s rebuttal, which we do not.

       Similarly, in State v. Janet Huffine Dykes, No. E2001-01722-CCA-R3-CD, 2002 WL
1974147, at *6 (Tenn. Crim. App. Aug. 16, 2002), also cited by the defendant, the young
victim was diagnosed as having sustained various fractures, some of which were healing,
while others had occurred within forty-eight hours of the x-rays. As the result of these
injuries to the victim, the defendant was convicted of reckless aggravated assault and
aggravated child abuse through neglect, with the assault conviction merging into the greater
neglect conviction.

        On appeal, the conviction for aggravated child abuse through neglect was reversed
because there “there [was] simply no proof in the record that the Defendant knew [the
victim] was injured and delayed seeking treatment for those injuries such that serious bodily
injury resulted.” Id. That situation is unlike the one presented by the present appeal, and we
previously have explained why the proof is sufficient to sustain the convictions both for
Counts 1 and 2.

       Additionally, the defendant relies upon State v. Phillips, 924 S.W.2d 662, 665 (Tenn.
1996), in which that defendant forced various sexual acts on the victim during a period of
several hours. This case, she argues, required that the State “make an election as to which
alleged act by [the defendant] constituted the ‘treated’ element of the single aggravated child
abuse count.” Again, this is relevant only if we accept her claim that, by a single sentence
in the rebuttal argument, the State adopted for child abuse the bill of particulars’ multi-
claims for child neglect. Thus, neither the court’s holding in Phillips nor the similar one in
State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000), is relevant to the defendant’s claim.

       The cases relied upon by the defendant as to this issue are relevant only if we accept
her view that, by the questioned statement in its rebuttal argument, the State changed its
previous position to become that the “scenarios” for aggravated child neglect replaced the
single act previously alleged for aggravated child abuse. Since we do not agree with the
argument, the authorities upon which she relies are not relevant. There was no election to
be made as to Count 2.

       This issue is without merit.




                                              33
                     III. Jury Instruction that Defendant Could Not
                          Be Convicted as to Both Counts 1 and 2

        The defendant makes the related argument that the trial court erred by not instructing
the jury that it could find the defendant guilty of aggravated child abuse or aggravated child
neglect, but not both. Such an instruction was required, according to the defendant’s
argument, because she was charged pursuant to two different theories regarding the same
event. The State responds that the defendant failed to request such a charge and that the
court’s giving of the pattern unanimity instruction was sufficient in this regard. To the
State’s response that the defendant cannot raise this issue on appeal because she did not do
so in the trial court, the defendant says this court may consider this claim utilizing a “plain
error” analysis.

       In support of her argument, the defendant relies upon the holdings of this court in
State v. Vernita Freeman, No. W2005-02904-CCA-R3-CD, 2007 WL 426710 (Tenn. Crim.
App. Feb. 6, 2007), and State v. Randy Lee Ownby, No. M2007-01367-CCA-R3-CD, 2009
WL 112582 (Tenn. Crim. App. Jan. 14, 2009), both of which we will consider.

        In Vernita Freeman, the eleven-month-old victim had injuries consistent with being
shaken and hitting a wall. The defendant was charged, inter alia, with aggravated child
abuse and aggravated child neglect, based upon these injuries. This court concluded that the
proof was sufficient to establish aggravated child abuse but not neglect, for it showed that
the acts of abuse “produced the serious bodily injury to the minor victim.” Vernita Freeman,
2007 WL 426710, at *8. The court explained that “if the State is proceeding upon
alternative theories, the jury should be instructed that they can find the defendant guilty of
one or the other of the theories, but not both.” Id. at *9 n.2.

       In Randy Lee Ownby, the defendant was indicted for two counts of aggravated child
abuse, two counts of aggravated child neglect, two counts of child abuse, two counts of child
neglect, two counts of aggravated assault, and two counts of reckless endangerment. The
injuries to the infant victim apparently were inflicted during a period of several months, from
the time of her birth on January 18, 2006, and her examination by a pediatrician on May 2,
2006. Randy Lee Ownby, 2009 WL 112582, at *1. In the trial of that matter, the victim’s
injuries were described as “three old rib fractures and three new rib fractures, all on the
posterior left side . . . three lower leg fractures; a fracture at the hip and a fracture around the
knee (both on the femur bone), and a fracture at the very end of the ankle . . . [and] one
additional new rib fracture, bringing the total of new left-side rib fractures to four.” Id. at
*5. The old and the new rib fractures were estimated to have been inflicted during a time
span of “approximately three to four weeks.” Id. The defendant was convicted of two
counts of aggravated child abuse and two counts of child abuse. The defendant argued on
appeal that the trial court erred in not providing an instruction that the jury must elect

                                                34
between the offenses of aggravated child abuse and aggravated child neglect. Id. at *12.
Relying upon the holding in Vernita Freeman, the court concluded “the trial court had an
obligation to ensure that the jury was unanimous in its verdict,” and by not doing so, the
court committed reversible error. Id. at *17. These two cases are relevant only if we accept
the defendant’s view of the “mistake” in the State’s rebuttal, which we do not.

        As for the defendant’s assertion that the verdicts for Counts 1 and 2 in the present
appeal are mutually exclusive, requiring reversals of both, we disagree.5 While the
defendant points to statements of the prosecution and the trial court that the charges involved
a crime which could be committed by two different means, such as felony murder or murder
first degree, we do not find that fact determinative. The child neglect charge was based upon
the defendant’s “ongoing course of conduct” in neglecting the welfare of the victim, “failing
to seek prenatal care,” and “delaying taking [the] baby to [the] hospital.” This “ongoing
course” included “depriving [the] victim of oxygen.” The child abuse charge was based
upon the claim that the “defendant knowingly deprive[d] the victim of oxygen after giving
birth.” Thus, the act which was the sole basis for the child abuse indictment was one of a
series in the “ongoing course of conduct” resulting in the child neglect charge. So, in that
sense, the State was alleging that the single act of depriving the victim of oxygen was alleged
to have been committed in two different ways. The defendant does not address this
possibility in her analysis asserting that the verdicts are mutually exclusive.

        The State argues that since this claim was not raised in the trial court, it is waived for
purposes of appeal, absent plain error. We agree. See Tenn. R. App. P. 3(e) (providing for
waiver of issues not specifically stated in a motion for new trial); State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010) (stating that a defendant waives those issues not raised in a
motion for new trial and those issues are subject to plain error review). In order for us to
find plain error: (a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial right of the
accused must have been adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established
by the record before we will recognize the existence of plain error, and complete

        5
          To support her “mutually exclusively verdicts” argument, the defendant also relies on the holding
of this court in State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375 (Tenn. Crim. App.
Mar. 9, 2011), perm. app. denied (Tenn. Aug. 25, 2011), which states that such verdicts occur when a jury
“‘necessarily reached two positive findings of fact that cannot logically mutually exist.’” Id. at *10 (quoting
Jackson v. State, 577 S.E.2d 570, 574 (Ga. 2003)). This holding was explained further in State v. Marlo
Davis, No. W2011-01548-CCA-R3-CD, 2013 WL 2297131, at *7-8 (Tenn. Crim. App. May 21, 2013), perm.
app. granted (Tenn. Nov. 13, 2013). However, as we have explained, the verdicts in this matter are not
mutually exclusive. Thus, application of this doctrine would not benefit the defendant.

                                                      35
consideration of all the factors is not necessary when it is clear from the record that at least
one factor cannot be established. Id. at 283.

       Applying a plain error analysis does not benefit the defendant. While the defendant
is correct in setting out the State’s argument, we disagree with her as to the effect of that
argument. A “clear and unequivocal rule of law” was breached and a “substantial right of
the accused” was affected only if we accept the defendant’s interpretation of the State’s
rebuttal argument. We do not accept her view, and, accordingly, consideration of the matter
is not required because of a “clear and unequivocal rule of law” or “[a necessity] to do
substantial justice.”

       This assignment is without merit.

             IV. Convictions for Counts 1 and 2 Violate Double Jeopardy

        The defendant similarly argues that her convictions for both aggravated child neglect
and reckless aggravated assault constitute double jeopardy because the bill of particulars
stated that Counts 1 and 2 included the same general conduct, depriving the victim of
oxygen. She acknowledges that she did not raise this issue in the trial court but that it affects
her substantial rights, and, therefore, we may consider it as “plain error.” The State responds
that the trial court’s merging the two convictions “eliminates or cures any double jeopardy
concerns because [the defendant] stands guilty and punishable of only one offense.” We
agree with the State.

       As this court explained in State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App.
1995), any error in imposing two sentences for a single offense is cured by merging the
judgments:

              Though the defendant[’s] initial convictions for both premeditated first
       degree murder and felony murder subjected him to double jeopardy, the trial
       court ultimately merged those convictions into a single conviction for
       premeditated first degree murder. The jury also returned separate guilty
       verdicts for both the felony murder and premeditated first degree murder,
       indicating that the jury was satisfied that the proof supported a conviction for
       either offense. Our independent review of the record leads us to the same
       conclusion. Under similar circumstances, our supreme court held that while
       it was error to impose two sentences for a single killing, vacating one of the
       murder convictions cured the double jeopardy problem. State v. Hurley, 876
       S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S. Ct. 328, 130 L.
       Ed. 2d 287 (1994).



                                               36
        In State v. Eddie Medlock, No. W2000-03009-CCA-R3-CD, 2002 WL 1549707
(Tenn. Crim. App. Jan. 16, 2002), perm. app. denied (Tenn. July 1, 2002), this court
explained that “‘[a] trial court should instruct a jury to render a verdict as to each count of
a multiple count indictment which requires specific jury findings on different theories . . .
and if the jury does return a verdict of guilt on more than one theory . . . the court may merge
the offenses and impose a single judgment of conviction.’” Id. at *4 (quoting State v.
Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997)).

        We conclude that the defendant’s claim that the verdicts are mutually exclusive is
without merit. The true issue, we believe, is whether double jeopardy rights are violated
when a defendant is tried for one offense, consisting of a series of acts, and a second offense,
based upon a single act, which is one of the series of acts of the first count, but alleged to
have been committed in a different fashion and is convicted as charged for the first offense
but of a lesser charge in the second. The defendant’s analysis considers not this issue but,
instead, whether a defendant’s double jeopardy rights are violated when she is convicted of
two indictments, based upon the same series of acts. As we have set out, we do not consider
this issue to accurately reflect the procedural posture of this case. Therefore, it is without
merit.

       Finally, we reject the defendant’s claim that she was entitled to an instruction that she
could be convicted of only one of the offenses. This argument relies upon her interpretation
of the errant sentence in the State’s rebuttal argument. As we have set out, it does not
accurately reflect the procedural posture of this case. It, thus, is without merit.

        As we have stated, the trial court entered judgments for both aggravated child abuse
and reckless aggravated assault, with the latter being merged into the former. The defendant
argues that her double jeopardy rights were violated by the dual convictions and that the
violation is not rectified by the merger. As we have set out, our view of the bases for these
two verdicts differs from that of the defendant. Her arguments are predicated upon the view
that the neglect and assault charges are based upon the same multiple claims. We disagree.
The issue presented by this case is whether both convictions may stand when the neglect
charge is based upon a series of claims, while the assault charge is based upon one of the
claims in the series, but alleges an alternative manner in which it was done. The parties have
not squarely dealt with this issue.

        However, the State has not argued that the court erred by this merger and that both
verdicts should stand. Accordingly, we will consider only the defendant’s claim that a single
judgment should have been filed, reflecting the merger. We agree with this argument. In
State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), this court held that “the
trial court’s entry of only one judgment of conviction imposing only one sentence of life
imprisonment protects the defendant from receiving multiple punishments for the same

                                              37
offense.” Applying the holding in Addison, we remand this matter to the trial court for entry
of a single judgment, for the offense of aggravated child neglect and reflecting that the
conviction for reckless aggravated assault was merged into it.6

                         V. Error in Allowing Testimony by Dr. Reece

        The defendant’s next three issues are interrelated ones that revolve around the
testimony of Dr. Reece. The defendant contends that the trial court “committed error upon
error” regarding Dr. Reece’s testimony “that resulted in the jury hearing inadmissible expert
opinion testimony akin to that deemed unreliable in Ward.” She argues the trial court erred
in the following ways: (1) by allowing the State to provide its experts with “any information
whatsoever about Stephen and Stephanie Ward” because, “[a]lthough Dr. Reece testified that
experts in his field considered sibling medical history and ‘social history’ to evaluate injury
causation, he never explained how that information provided a reliable foundation for
opinions on that issue”; (2) by denying her motion to disqualify Dr. Reece from testifying
after the State provided him with highly prejudicial information about the manner of death
of the other children, in direct violation of the trial court’s orders; (3) by not limiting Dr.
Reece’s trial testimony to the narrow scope permitted by the trial court’s pretrial order; (4)
by denying the defendant a McDaniel hearing on the admissibility of Dr. Reece’s opinions;
and (5) by admitting Dr. Reece’s testimony when it did not qualify as “expert opinion
testimony” under Tennessee Rules of Evidence 702 and 703.

       To aid in an understanding of these issues, we must review exactly what transpired
with respect to Dr. Reece’s testimony, both before and during the trial. As we have
previously set out, the trial court entered an order early in the pretrial period that specified
exactly what information could be furnished to Dr. Reece:

               As for the other information referenced by Dr. Reece, the Court finds
        it appropriate to provide any proposed experts[’] information regarding (1)
        information about the pregnancy as well as how many pregnancies the mother
        had experienced prior, (2) information about previous labors, (3) health of the
        mother during the pregnancy, (4) length of labor, (5) all of the [victim’s]
        medical records including information related to blood glucose levels (noting
        greater than 260 indicates the baby is stressed generally from cardio-adrenal


        6
          At trial, both parties agreed that the verdicts should be merged, an opinion which the State has
continued on appeal. The defendant now argues her conviction as to Count 2, being the lesser offense, should
be vacated. We have directed that a single judgment be entered, reflecting the conviction for Count 1. The
issue as to whether, given the unique specific claims of the bill of particulars, the court could have determined
that both verdicts stand and that merger was not required, is not before this court. Therefore, we take no
position on that issue.

                                                      38
       stimulation), heart and lung information, and brain wave test results, (7)
       medical histories of any other children born to the mother including cause of
       death without indicating manner of death is anything other than undetermined,
       and (8) any statements [d]efendant provided to medical personnel or law
       enforcement regarding her pregnancy and birth of [the victim] as well as any
       statements [d]efendant provided to medical personnel or law enforcement
       regarding the births of her other children.

        Dr. Reece subsequently provided a report in which he mentioned the defendant’s
having had two other children who suffered unexplained deaths, one of which had been
“actually diagnosed as a smothering death.” In response, on March 11, 2009, the defendant
filed a motion to disqualify Dr. Reece from testifying as an expert witness, asserting that the
State had violated the trial court’s order by providing prohibited information to him,
including information that she had been charged with murder for smothering two of her
children.

       After holding a hearing, the trial court entered an order on July 24, 2009, in which it
found that the State had committed “multiple violations” of the court’s order in the
documents provided to Dr. Reece. The trial court noted that the packet of materials provided
to Dr. Reece contained “multiple references to homicide,” and that the State had even
conceded in its response to the motion that it had provided Dr. Reece with information that
the defendant was indicted and charged with homicide in the deaths of Stephen and
Stephanie Ward and that she was under various bond conditions in connection with those
charges. The trial court listed the “most egregious examples” of the State’s violation of its
order as follows:

       •      Document prepared by State titled “Summary of Charges–State
              vs. Vernica Ward, AKA Vernica Jackson, AKA Vernica
              Calloway CPN 06-647786” where the State sets forth
              Defendant’s pending charges in case no. 2004-D-2901,
              explicitly stating that Defendant is charged with first degree
              murder and aggravated child abuse due to the allegation “she
              smothered two of her other children.”

       •      Affidavit in Support of Search Warrant noting in the statement
              of facts in support of probable cause that “Affiant learned that
              the [Defendant] is currently out on bond awaiting trial in the
              death of another child that she gave birth to.”

       •      Tennessee Bureau of Investigation[] Request for Examination
              form that lists Stephanie Madi Ward as the victim and indicates

                                              39
              the type of offense being investigated as “Hom[i]cide /Murder.”

        The trial court additionally noted that the State had provided a number of other
“curious[ly]” redacted documents to Dr. Reece that “demonstrate strategic redaction where
the State engaged in a partial redaction but left words implying suspicious activity that
would lead the reader to infer that medical examiners had ruled death of other children being
a result of some type of criminal act[.]”

       The trial court concluded, however, that the proper remedy for the State’s violations
of its order was not to exclude Dr. Reece’s testimony, but instead to limit its scope.
Specifically, the court ruled that Dr. Reece could testify regarding his opinion that the victim
suffered hypoxia after her birth but could not testify that she was intentionally suffocated
unless the State could show that his opinion was based only on information he received that
had been authorized by the court. The trial court’s ruling states in pertinent part:

               Considering the totality of the circumstances in this case, the Court
       finds it must ameliorate this situation in a way that is fair to both parties. The
       State has already incurred much expense attempting to locate an[] expert and
       requiring the State to start from scratch again would further delay Defendant’s
       right to a trial. The State, however, did violate this Court’s orders and must
       not benefit from this violation. Accordingly, the Court finds that Dr. Reece
       is permitted to testify to limited portions of his report.

              Specifically, the first seven paragraphs of Dr. Reece’s report that
       describe the medical history of [the victim] as well as Defendant’s statements
       regarding the birth of [the victim]. All of this information was permitted to be
       provided to Dr. Reece. Based on this information, Dr. Reece concluded that
       [the victim] was breathing at birth and that the injuries were a result of
       hypoxia after birth rather than an injury incurred during the home birthing
       process. Thus, Dr. Reece is permitted to testify as to this opinion.

               However, in paragraphs eight through ten of his report, Dr. Reece refers
       to the deaths of Defendant’s other two children, Stephen and Stephanie Ward,
       commenting that Stephanie was “smothered.” In these paragraphs, Dr. Reece
       appears to be referencing the “rule of three,” which has been previously
       litigated. Based on his knowledge of the events surrounding Stephen Ward
       and particularly Stephanie Ward’s deaths, he offers the additional opinion that
       [the victim’s] hypoxic brain damage resulted from “intentional suffocation by
       her mother.” This opinion is not admissible for two reasons. First, unless the
       State can demonstrate otherwise, Dr. Reece based his opinion that [the victim]
       was “intentionally suffocated” on the facts surrounding Stephen Ward and

                                              40
       particularly Stephanie Ward’s deaths (as noted in paragraphs eight through ten
       of his report). Second, it is not Dr. Reece’s position to make a legal
       conclusion as to who cause[d] the intentional suffocation. As a medical
       expert, he may be able to conclude based on the facts that a victim was
       intentionally suffocated but that does not allow him to invade the jury’s
       province to determine who caused the intentional smothering.

               Accordingly, the Court finds that Dr. Reece is limited to testifying to
       the medical history of [the victim] (for example, he can explain to the jury in
       layman’s term[s] what hypoxia means and how it is caused) and offer his
       opinion that [the victim’s] hypoxic brain damage resulted after birth (that is,
       it did not occur during the birth of [the victim]). Unless the State is able to
       demonstrate to this Court that Dr. Reece formulated his opinion that [the
       victim] was intentionally asphyxiated, or smothered, independent of any
       knowledge as to the manner of either Stephen or Stephanie[] Ward[’s death]
       possibly being a homicide, he is prohibited from testifying on this issue.
       Regardless of whether the Court is persuaded that Dr. Reece may testify that
       the injuries are a result [of] intentional suffocation, Dr. Reece is prohibited
       from testifying that the suffocation was caused by “her mother, the only
       person with her at the time.”

        On May 24, 2010, a few weeks prior to trial, the defendant filed a “Motion to Limit
Dr. Reece’s Testimony to Matters Approved” by the court’s above ruling, noting that the
State had not provided any updated expert witness reports or data to show that Dr. Reece
formulated his opinion that the victim died of intentional suffocation independently of his
information about the deaths of the victim’s siblings, and asserting that any attempt by the
State to do so at such a late date would unfairly prejudice the defendant’s ability to defend
herself at trial.

        On June 3, 2010, the defendant filed a motion for a jury-out hearing for the court to
determine whether the opinions Dr. Reece intended to offer in the case were based on
reliable scientific evidence or mere speculation and whether his opinions fell within his
specific area of expertise. In the motion, the defendant specifically referenced Dr. Reece’s
opinion in his report that the victim was born healthy and suffered a hypoxic injury
sometime after her birth, arguing that such an “opinion” was based merely on Dr. Reece’s
speculation rather than on reliable scientific evidence.

       In a June 4, 2010 hearing held before the June 7 start of the trial, defense counsel
argued for the necessity of a jury-out hearing to determine whether Dr. Reece’s testimony
would involve opinions that exceeded the scope of his expertise since he was a pediatrician
rather than a neonatologist. The trial court denied the motion, finding that Dr. Reece’s

                                             41
speciality went more towards the weight of his testimony rather than its admissibility. The
trial court additionally ruled that it would hold a hearing outside the presence of the jury to
consider whether it would allow Dr. Reece to testify as to any opinions that went beyond the
first seven paragraphs of his report.

        On June 9, 2010, the third day of trial, the trial court held a jury-out hearing at which
Dr. Reece testified that his knowledge the defendant had been indicted in connection with
the deaths of her other children in no way influenced the opinions he formed regarding the
victim’s injury and that his opinion regarding the victim’s injury was “independent of those
things.” He further testified that he was familiar with the “rule of three” but had not relied
on it in reaching his opinions in the case.

        On cross-examination, he testified that he believed that “independent of that past
history that [he] was supplied that [he] still would have come to the same conclusions about
[the victim’s] reason for her hypoxic injury.” Upon further cross-examination, he reiterated
that even if he had not received the prohibited information, he would still have rendered an
opinion that it was a case of intentional asphyxiation, based not on any medical findings or
tests but, instead, on the defendant’s behavior and the circumstances surrounding the
pregnancy and birth, which, due to his years of experience in child abuse cases, led him to
conclude that she had either malignantly neglected or intentionally suffocated the victim
after her birth:

              Q. All right. And is it your opinion that that – is it your testimony that
       that opinion [that the victim was intentionally suffocated] is based on medical
       science and that you can prove that or that that’s just your opinion?

              A. Well, it’s my opinion. I don’t think anyone can prove exactly what
       happened to this child at that time. I just don’t think that’s possible. Medical
       science notwithstanding. I don’t think anyone was there, and I don’t think that
       anyone except the mother knows exactly what happened. However in the
       absence of other findings, other reasons to believe that this child had a
       suffocatory event after birth, that is by aspiration of secretions or by
       overlaying when the mother became unconscious. The only conclusion that
       one can reach in my opinion from a common sense standpoint is that she
       probably had her hand over the mouth and nose of this baby and suffocated
       the baby. Now, can I say that with absolute certainty with medical science to
       prove it? No. Nobody can. And I don’t think that anybody can say that it
       didn’t happen. That’s the problem with this case. No one was there. This
       was an unwitnessed event. And so I think we are left with what we have, with
       what we know. And my conclusion on the basis of that is that she most likely
       suffocated the baby intentionally.

                                               42
        Q. And when you say “most likely,” is that fifty-one, forty-nine or is
that just - -

       A. No, it’s simply a matter of I can’t be a hundred percent sure, which
is what I just finished saying. I can’t be absolutely sure. But if I have to make
a judgment about what happened to this baby, it would be that.

      Q. And you can make that judgment without relying upon any
information related to the social history just upon the circumstances
surrounding [the victim’s] birth?

         A. Yes, yes. Well, I think the social history surrounding the absence
of prenatal care, the concealment of the pregnancy, the fact that she didn’t
seek medical attention by calling 911, the fact that she went to the hospital
several hours after the delivery of the baby. The whole peculiar nature of her
response to this baby’s birth all come together for me as a pediatrician who
has seen many, many kids being born both inside and outside of the hospital
– it’s just the whole constellation of the picture tells me that my conclusion is
probably right.

       Q. And you’re basing that conclusion on essentially an aggregation of
factors that you would consider?

       A. Of the factors that we know.

       Q. Okay. Prior DCS involvement with the mother?

       A. I didn’t even consider that at this point. I think that taking this
delivery in a toilet in a locked bathroom and then concealing the fact that this
baby had been delivered and not taking this baby for appropriate medical care
immediately after the delivery all speak to me as to be almost a malignant
neglect if not intentional suffocation.

       Q. And that’s your opinion?

       A. That’s my opinion. That’s what you asked me.

       Q. Right. But not based on any medicine?

       A. You’re not going to base this on medical thing [sic]. It’s just not
going to be possible by medical science to prove this one way or the other.

                                       43
               Q. Is it as you said earlier a matter of common sense?

              A. It’s not common sense, but it’s certainly a good aggregate thinking
       about all of the circumstances of this situation.

             Q. Do you think that thinking jurors are capable of doing it themselves
       without the assistance of an expert?

               A. I’m not going to opine that. I don’t know.

              Q. Is there any particular expertise that you have in this area that
       renders you more capable of doing that than jurors?

               A. Oh, I think so. I’ve spent almost fifty years as a physician. I’ve
       seen many, many, many cases, and I have specialized in child abuse for the
       last thirty years. Yes, I do think I have an expertise that’s beyond the average
       juror. But . . . I don’t think that jurors are unable to form opinions about what
       happens in these kinds of cases.

        Upon questioning by the trial court, Dr. Reece said that he could testify without
reference to the information he had received about Stephanie and Stephen Ward’s deaths but
that he thought such information would be helpful to aid the jury in understanding the case
because it established “ a pattern of things.” When the court pointed out that he would be
getting into unauthorized propensity evidence if he did so, he assured the court that he could
testify about the victim’s injury without mentioning the asphyxiation deaths of her siblings
or his opinion that the defendant was the person responsible for the intentional asphyxiation
of the victim.

        At the conclusion of the hearing, the trial court qualified Dr. Reece as an expert in the
field of pediatrics and child maltreatment and ruled that he would be allowed to testify as to
his opinion that the victim’s hypoxic injury occurred as the result of an intentional
suffocation, so long as he did not refer to the circumstances surrounding the deaths of the
victim’s siblings or offer his opinion that the defendant was the individual responsible for
the injury.

        On appeal, the defendant first argues that the trial court erred by ruling that the State’s
experts could be provided with any information about the deaths of the victim’s siblings,
asserting that Dr. Reece failed to testify at the pretrial hearing how such information was
reliable. We respectfully disagree.

       Tennessee Rule of Evidence 703, “Bases of Opinion Testimony by Experts” provides

                                                44
in pertinent part:

              The facts of data in the particular case upon which an expert bases an
       opinion or inference may be those perceived or known to the expert at or
       before the hearing. If of a type reasonably relied upon by experts in the
       particular field in forming opinions or inferences upon the subject, the facts
       or data need not be admissible in evidence. . . . The court shall disallow
       testimony in the form of an opinion or inference if the underlying facts or data
       indicate lack of trustworthiness.

       At the April 21, 2008 pretrial hearing, Dr. Reece had testified that it would be
important to an expert in his fields of pediatrics and child maltreatment to have access to the
social and medical history of the victim’s siblings and the defendant’s prior pregnancies,
including any history of spontaneous abortions, in order to eliminate a medical or genetic
cause of the victim’s injury and to determine if the injury was accidental or non-accidental.
He described in detail how such information would be important to an expert such as himself
and testified that it was routine in his field of practice to look at such medical records, which
he described as “usually very reliable.” We conclude, therefore, that the record supports the
ruling of the trial court that Dr. Reece could be provided with the medical histories of the
victim’s siblings.

       The defendant next argues that the trial court erred by not disqualifying Dr. Reece as
a witness following the State’s violation of the court’s order regarding the type of
information it could provide to him about the deaths of the victim’s siblings. We, again,
respectfully disagree. In our view, the trial court, in its original order, fashioned an
appropriate remedy for the violation by limiting Dr. Reece’s testimony to the information
contained in the first seven paragraphs of his report.

       The defendant next argues that the trial court erred by its reversal of its order limiting
Dr. Reece’s testimony to the narrow scope permitted by the court’s pretrial order, by denying
her a McDaniel hearing on the admissibility of Dr. Reece’s opinion that the victim’s injury
resulted from intentional suffocation, and by admitting Dr. Reece’s testimony when it did
not qualify as “expert opinion testimony” under Tennessee Rules of Evidence 702 and 703.

        The admission of expert testimony is governed by Tennessee Rules of Evidence 702
and 703. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 provides
that expert testimony shall be disallowed “if the underlying facts or data indicate lack of
trustworthiness.” Tenn. R. Evid. 703.

                                               45
       In McDaniel, 955 S.W.2d at 265, our supreme court recited several nonexclusive
factors that a court may consider in determining the reliability of scientific testimony,
including:

       “(1) whether scientific evidence has been tested and the methodology with
       which it has been tested; (2) whether the evidence has been subjected to peer
       review or publication; (3) whether a potential rate of error is known; (4)
       whether . . . the evidence is generally accepted in the scientific community;
       and (5) whether the expert’s research in the field has been conducted
       independent of litigation.”

Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting McDaniel,
955 S.W.2d at 265). The Brown court identified two other factors that a trial court may
consider in assessing the reliability of an expert’s methodology: (1) the expert’s
qualifications for testifying on the subject at issue, and (2) the connection between the
expert’s knowledge and the basis for the expert’s opinion. Id. (citations omitted).

        “[T]he allowance of expert testimony, the qualifications of expert witnesses, and the
relevancy and competency of expert testimony are matters which rest within the sound
discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987)
(citing Murray v. State, 377 S.W.2d 918, 920 (Tenn. 1964); Bryant v. State, 539 S.W.2d
816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn. Crim.
App. 1982)). As such, we will not disturb the trial court’s ruling absent a clear showing that
it abused its discretion in admitting the testimony. Id.; State v. Stevens, 78 S.W.3d 817, 832
(Tenn. 2002).

        We disagree that the trial court erred by not holding another hearing on the
admissibility of Dr. Reece’s opinions or by admitting Dr. Reece’s experience-based
testimony as expert opinion testimony. As the State points out, the trial court held a
McDaniel hearing on April 21, 2008, followed by a number of additional evidentiary
hearings, including the one held after the start of the trial, at which it considered the
reliability and admissibility of Dr. Reece’s opinion testimony. Moreover, Dr. Reece
established at the mid-trial hearing that he was basing his opinions rendered in the case on
his years of experience as a pediatrician and expert in child maltreatment. Based upon this
testimony, the trial court determined that an additional McDaniel hearing was not required
and Dr. Reece could testify that, with the surrounding facts, as he explained, the suffocation
was intentional, in his professional opinion. In her reply brief, the defendant argues that the
April 21, 2008 hearing was not a McDaniel hearing, for Dr. Reece did not issue his final
report “until much later.” We disagree with the defendant’s analysis as to a McDaniel
hearing and conclude that the record supports the trial court's determination.



                                              46
       Additionally, the defendant argues that she was prejudiced by the court’s
determination, during the trial, that Dr. Reece would be permitted to testify that, in his
professional opinion, the smothering of the victim was an intentional act. As we have set
out, there was abundant circumstantial evidence, even absent the testimony of Dr. Reece,
from which the jury reasonably could have determined that the defendant intentionally
suffocated the victim. Accordingly, we conclude that this assignment of error is without
merit.

                  VI. Error in Allowing “Learned Treatise” Evidence

        The defendant next contends that the trial court erred by allowing the State to
introduce as substantive evidence a July 2006 article entitled “Distinguishing Sudden Infant
Death Syndrome From Child Abuse Fatalities,” which was a joint publication of the
American Academy of Pediatrics and the National Association of Medical Examiners. In
support, the defendant cites, among other things, Tennessee Rule of Evidence 618, which
provides in pertinent part that “statements contained in published treatises . . . established as
a reliable authority . . . may be used to impeach the expert witness’s credibility but may not
be received as substantive evidence.” The State concedes that the trial court erred in
admitting the evidence, arguing the error was harmless, and we agree. In this regard, the
State asserts that the article was admissible not to bolster the testimony of Dr. Reece, but
rather to explain his reasons for requesting the information which he did regarding this
matter. We agree and conclude, as did the State, that the trial court erred in allowing this
article into evidence but that its admission was harmless.

                    VII. Errors in Allowing Irrelevant, Confusing,
                         Misleading, and Prejudicial Evidence

        The defendant next contends that the trial court committed reversible error by
admitting “irrelevant, confusing, misleading, and unfairly prejudicial evidence” about the
defendant’s other children and her actions in the months and days before the victim’s birth.
She further contends that the trial court erred by not instructing the jury on how it could
consider the evidence and by failing to limit the State’s arguments about the evidence.
Specifically, the defendant complains about the introduction of evidence of her concealment
of her pregnancy with the victim, of the false and inconsistent statements she gave about her
pregnancy history, of her refusal to give the DCS employee the names of her other children,
and of the history of her previous pregnancies, including the prenatal care she received
during those pregnancies and her home delivery in 2001. The defendant argues that the trial
court should have excluded the evidence under Tennessee Rules of Evidence 401, 402, 403,
and 404(b) as irrelevant, misleading, unfairly prejudicial, and prohibited “bad act” evidence
whose prejudicial effect outweighed any probative value.



                                               47
        Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence, subject to
certain exceptions, is generally admissible under Rule 402 of the Tennessee Rules of
Evidence. Relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

       Tennessee Rule of Evidence 404(b) provides as follows:

               Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
       acts is not admissible to prove the character of a person in order to show action
       in conformity with the character trait. It may, however, be admissible for other
       purposes. The conditions which must be satisfied before allowing such
       evidence are:

             (1) The court upon request must hold a hearing outside the jury’s
       presence;

             (2) The court must determine that a material issue exists other than
       conduct conforming with a character trait and must upon request state on the
       record the material issue, the ruling, and the reasons for admitting the
       evidence;

              (3) The court must find proof of the other crime, wrong, or act to be
       clear and convincing; and

             (4) The court must exclude the evidence if its probative value is
       outweighed by the danger of unfair prejudice.

       Exceptional cases in which evidence of an accused’s prior bad acts will be admissible
include those in which the evidence is introduced to prove identity, intent, motive,
opportunity, or rebuttal of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn.
Crim. App. 1995); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[7][a] (5th
ed. 2011). Where the trial judge has substantially complied with procedural requirements,
the standard of review for the admission of bad act evidence is abuse of discretion. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Because the trial court in this matter complied
with the requirements of Rule 404(b), we review its rulings under an abuse of discretion
standard.

      Following the pretrial hearing, the trial court found that evidence that the defendant
concealed her pregnancy with the victim was “clear and convincing,” was relevant for the

                                              48
State to prove the defendant’s motive and intent, and that the probative value of the evidence
outweighed the possible prejudice from its admission. We conclude that the record supports
this determination by the trial court.

        The trial court, likewise, found that evidence of the defendant’s having given false and
inconsistent information about her pregnancy and having refused to provide the names of her
other children was clear and convincing, relevant to establish the defendant’s motive and
intent, and that its probative value outweighed its prejudicial effect. The defendant asserts
that the trial court failed to state for the record how the defendant’s having refused to provide
the names of her children to DCS employee Gooch was relevant to any issue at trial. In our
view, however, the trial court’s ruling that the evidence went “to the issues of her
concealment, . . . hampering the investigation and of providing false information” contains
an implicit finding that such evidence, similar to the defendant’s having provided false and
misleading information to health professionals about her pregnancy, was relevant to show
the defendant’s motive and intent. We conclude, therefore, that the trial court did not err in
admitting the evidence.

       The defendant also complains about the trial court’s having admitted evidence about
the defendant’s prior pregnancies, prenatal care in those pregnancies, and alleged home
delivery of a child in 2001. The defendant argues that such evidence, among other things,
was irrelevant to any material disputed issue at trial, was misleading to the jury, and that its
prejudicial effect substantially outweighed any probative value.

        Our supreme court explained in State v. James, 81 S.W.3d 751, 760 (Tenn. 2002), the
role of the appellate court in reviewing evidentiary rulings of the trial court:

              Rulings on the admissibility of evidence are largely within the sound
       discretion of the trial court, and on appellate review, a trial court’s ruling to
       admit or exclude evidence will not be disturbed unless it appears that such a
       ruling amounts to an abuse of that discretion. [State v.] DuBose, 953 S.W.2d
       [649,] 652 [(Tenn. 1997)]. . . . “‘[A]n appellate court should find an abuse of
       discretion when it appears that the trial court applied an incorrect legal
       standard, or reached a decision which is against logic or reasoning that caused
       an injustice to the party complaining.’” State v. Stevens, 78 S.W.3d 817
       (Tenn. 2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

       The trial court found that evidence of the defendant’s prenatal care during previous
pregnancies was relevant to the defendant’s “history about this pregnancy and whether or not
she sought care and whether or not she had knowledge that she was needing care.” The court
found that evidence of the defendant’s statements about her prior prenatal care was relevant
“to show that she knows what she’s supposed to do and she did or did not do it.” The court

                                               49
found evidence of her alleged home birth in 2001 was relevant to show “negligence and/or
other than by accidental means” and that its probative value outweighed any unfair prejudice.

        As we have previously discussed, the defendant’s lack of prenatal care with the victim
does not constitute a crime under the child abuse and neglect statutes. However, evidence
about her prior pregnancies, prenatal care, and childbirths was arguably relevant to show that
the defendant was familiar with pregnancy and the birthing process and therefore should
have recognized what was happening to her body on October 31, 2006, in time to seek help
for herself and the victim. Thus, we cannot find that the trial court abused its discretion in
admitting the evidence. Moreover, even if the evidence was admitted in error, we have no
hesitation in concluding that it was harmless error. Tenn. R. App. P. 36(b).

       We further conclude that the trial court did not err in not instructing the jury as to how
it could consider the evidence or in not limiting the State’s arguments with respect to the
evidence. The defendant is not, therefore, entitled to relief on the basis of this issue.

    VIII. Error in Not Redacting Portions of the Defendant’s Statement to Police

       The defendant contends that the trial court erred by denying her motion to redact
portions of her interviews with the police and DCS. Specifically, she argues that the trial
court erred by not redacting her statements about the prenatal care she received during her
pregnancies with two other children and not redacting the final several minutes of her
interview, in which, according to the defendant, her expressions of concern about what was
going to happen to her “created a significant and unfair danger that the jury would
misinterpret her reaction as an overreaction of guilt.”

        The record reflects that, after an earlier hearing, the trial court suppressed portions of
the interviews in which the defendant spoke about the deaths of the three children. At a June
4, 2010 hearing, the State agreed to redact other portions of the statements, and the trial court
ordered that the defendant’s comment that it seemed as if everyone was out to get her should
be redacted from the statement. The trial court ruled that the defendant’s statements about
her prenatal care with other pregnancies, the fact that she had two other children who lived
in Nashville, and the defendant’s comments about how she did not know what to say and her
mind was racing should be left in the statement. We can find no error in these rulings.
Accordingly, we conclude that the defendant is not entitled to relief on the basis of these
issues.

             IX. Error in Allowing Testimony by Victim’s Foster Mother

       The defendant contends that the trial court erred “by allowing the State to introduce
irrelevant and highly prejudicial testimony from the alleged victim’s foster mother.” The

                                               50
defendant argues that Ms. Frazier-Weir’s testimony about the victim’s injury was irrelevant
because she did not begin caring for the victim until more than two years after the alleged
injury occurred, and the State had already “clearly established that [the victim] suffered a
permanent injury through the undisputed testimony of the neonatologists.” She further
argues that even if Ms. Frazier-Weir’s testimony was somehow relevant, its probative value
was substantially outweighed by the unfair prejudice it created, asserting that Ms. Frazier-
Weir’s testimony essentially amounted to improperly admitted “victim impact evidence” that
was designed to draw on the jurors’ sympathies and emotions.

        We disagree that Ms. Frazier-Weir’s testimony about the victim’s mental and physical
impairments was irrelevant to the issue of whether she had suffered a permanent, serious
injury or that Ms. Frazier-Weir’s descriptions of the victim amounted to improper victim
impact evidence. Moreover, even if it were error to admit the evidence, we would conclude
that it was harmless.

                                 X. Excessive Sentence

       Finally, the defendant contends that the trial court imposed an excessive sentence by
erroneously concluding that she was a violent offender and by imposing the maximum
sentence within the range.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

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

       (2) The presentence 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 mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

                                             51
Tenn. Code Ann. § 40-35-210(b) (2010).

       The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” Id. at 707.

      The State concedes that the defendant should not have been sentenced as a violent
offender because aggravated child neglect was held in Dorantes to be a separate offense from
aggravated child abuse, and aggravated child neglect is not one of the enumerated felonies
in Tennessee Code Annotated section § 40-35-501(i)(2) that requires 100% service of the
sentence. We agree that the defendant should have been sentenced as a Range I, standard
offender to serve her sentence at 30% release eligibility rather than as a violent offender at
100% release eligibility.

        In sentencing the defendant to the maximum sentence within the range, the trial court
found the following enhancement factors applicable: (1) that the defendant had a previous
history of criminal convictions, based upon her prior theft conviction; (4) that the victim was
particularly vulnerable because she was a new baby born at home; and (14) that the
defendant abused a position of trust. See Tenn. Code Ann. § 40-35-114(1), (4), (14). We
conclude that the trial court’s finding of these enhancement factors and its imposition of the
maximum sentence within the range fell within its broad discretion in sentencing. Thus,
although we affirm the length of the sentence, we remand for entry of an amended judgment
setting the defendant’s release eligibility at 30%.

                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, we remand this matter for entry
of a single judgment reflecting that the defendant’s sentence is to be served with a 30%
release eligibility. In all other respects, the judgment of the trial court is affirmed.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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