            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                            April 28, 2015 Session

                        STATE OF TENNESSEE v. DANNY BRANAM

                     Direct Appeal from the Criminal Court for Knox County
                           No. 96976      Mary Beth Leibowitz, Judge



                        No. E2014-01345-CCA-R3-CD – Filed July 31, 2015


A Knox County jury convicted the Defendant, Danny Branam, of felony murder
committed during the perpetration of aggravated child abuse and aggravated child abuse.
The trial court sentenced the Defendant to life in prison for the felony murder conviction
with a consecutive twenty-year sentence for the aggravated child abuse conviction. On
appeal, the Defendant contends that the trial court erred when it denied his motion for a
mistrial and that the evidence is insufficient to sustain his convictions. After a thorough
review of the record and applicable law, we affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Danny Branam.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme P. Allen, District Attorney General; Joan S. Stewart and Christopher M.
Rodgers, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                     OPINION

                                                       I. Facts

      This case arises from the death of the victim, B.S., a nineteen-month-old child.1
The Defendant was in a relationship with the victim‟s mother and living with them at the
time of the victim‟s death. For his involvement in the victim‟s death, a Knox County

1
    It is the policy of this Court to refer to minor victims by their initials.
grand jury indicted the Defendant for one count of felony murder committed during the
perpetration of aggravated child abuse and one count of aggravated child abuse.

                                          A. Trial

        The parties presented the following evidence at trial: Leslie Wakefield testified
that she was working as a security officer at Big Oaks Apartments on Tuesday, April 5,
2011. She stated that around 7:00 p.m. that night, a tenant, Brittany Stinnett, approached
her with the “lifeless body” of B.S. in her arms and asked for help because B.S. was not
breathing. Ms. Wakefield told Ms. Stinnett to take B.S. back inside, and she followed her
into Ms. Stinnett‟s apartment. Once inside, Ms. Wakefield noticed that B.S. was
“covered with bruises” on her head, torso, arms, and legs. Ms. Wakefield asked what had
happened to the baby, and Ms. Stinnett responded that she had fallen out of her crib. Ms.
Wakefield left the apartment and called 911 to send investigators to the scene, because
the situation was a “possible child abuse.” When the ambulance arrived, Ms. Wakefield
led the medical technicians to the apartment and stayed on the scene while it was being
processed by the Knoxville Police Department. Ms. Wakefield testified that she did not
see the Defendant anywhere on the scene.

        Captain Dean Fontaine testified that he was a Knoxville firefighter who responded
to the scene at 7:00 p.m. on April 5, 2011. Captain Fontaine entered the apartment and
found B.S. on the couch in a diaper and in “obvious respiratory distress.” She was “only
breathing about eight times a minute,” about a third of what a child should have been
breathing. He noticed that B.S. had “quite a bit of bruising” on her left forehead, left jaw,
both knees, and on her face above her mouth. He testified that she also had “numerous
small bruises” all over her face and body. Captain Fontaine attempted to put an oral
airway inside B.S.‟s mouth, but her “jaws were clenched” preventing insertion. He
testified that B.S.‟s pupils were fixed and dilated, the “classic signs of a closed head
injury.” “Judging by the bruising and the overall scene,” Captain Fontaine “determined
this was probably a case of child abuse.”

       The ambulance arrived to transport B.S. to the hospital, and Captain Fontaine rode
in the ambulance and performed several techniques to help B.S. breathe. He could not
locate a site on her body to insert an IV because all of her limbs were bruised.

       James Perry, a paramedic, testified that when he arrived at the apartment on April
5, 2011, he found B.S. lying on the couch surrounded by firefighters. The first thing he
noticed was bruising on B.S.‟s legs, and he noticed she was not breathing very well. He
was told that she fell out of her crib, and he went to look at the crib. Mr. Perry noticed
that the crib was broken, but he did not think the crib looked high enough off the ground
to cause the injuries he had seen on B.S.

                                             2
       Dr. Carlos Angel testified that he was a pediatric surgeon at East Tennessee
Children‟s Hospital and the University of Tennessee Hospital. He was present in the
emergency room when B.S. was brought to the hospital, and he stated that the first thing
he noticed was her bruises. B.S. was placed on a ventilator. The neurosurgery
department was called to examine for possible head injuries. Dr. Angel testified that
B.S.‟s injuries were not consistent with an accident or fall. He explained:

             If a child falls from a height . . . he [or she] might have a loss of
      consciousness. [He or she] might have a closed head injury. That‟s all
      possible. But there‟s no reason for a child to have multiple bruises and
      bruises . . . [of] different ages. . . . And then you see that this child had
      bruises in different stages of resolution. So it looks like this child might
      have been traumatized multiple times.

       On cross-examination, Dr. Angel agreed that B.S.‟s injuries could have
“theoretically” been accidental. He stated that he was not aware if she had a habit of
climbing on things. He stated that, based upon his examination of B.S.‟s injuries, he
suspected abuse, which was why he called Child Protective Services.

       Officer Danielle Wieberg testified that she was an evidence technician with the
Knoxville Police Department and that she responded to a request to photograph the
injuries of a child at the University of Tennessee Hospital on Tuesday, April 5, 2011.
Officer Weiberg arrived at the hospital and began photographing B.S.‟s injuries, which
she described as bruises “all over” B.S.‟s body. Officer Wieberg said that B.S. was not
conscious when she photographed her body. Those photographs were admitted into
evidence. From the hospital, Officer Wieberg went to the apartment where the victim
was living. She took photographs of the entire apartment, including the crib where B.S.
slept. Those photographs were also admitted into evidence. From the photographs,
Officer Wieberg noted that a “red blood like substance type stain” was found on B.S.‟s
pillow in her crib and a bamboo stick was found on the floor of B.S.‟s room. Officer
Wieberg noted that B.S.‟s room had carpeted floor, and she photographed the thickness
of the carpet and underlying pad by pulling both up from the floor.

       Officer Wieberg identified items found at the apartment: two Kroger receipts from
April 4, 2011, and a Walmart receipt, Dollar General Store receipt, and a Western Union
receipt, all dated April 5, 2011. Also collected from the apartment was the victim‟s crib,
crib mattress, and bedding. Officer Wieberg recalled that two hours elapsed between the
time that she received the call to the hospital and when she arrived at the apartment.

        Dr. Mary Palmer, a pediatric emergency medicine physician, testified as an expert
in the fields of pediatric emergency room medicine and pediatric child abuse. Dr. Palmer

                                            3
arrived at the hospital the day after B.S.‟s admission, and she examined her. Dr. Palmer
also reviewed B.S.‟s hospital records on that day, which were admitted into evidence.

       Dr. Palmer testified that B.S.‟s emergency room records stated that she was
unresponsive when EMS personnel found her. The history contained in the records stated
that B.S. had suffered a six-foot fall and that the parents had reported that she jumped out
of her crib. Dr. Palmer noted that the records included documentation of the injuries and
bruises on B.S.‟s body. After examining B.S.‟s body, Dr. Palmer wrote her own
consultation report, which she read aloud for the jury:

              [Nineteen] month old [victim] with (1) extensive bruising focused on
       head (both sides) and back and buttocks and thighs and knees. (2) [Three]
       areas of unusual patterned abrasions on right lower abdomen and bilateral
       medial thighs. (3) Intracranial bleeding and swelling consistent with
       significant closed head injury, and (4) Retinal hemorrhages per ICU M.D.,
       to be confirmed by ophthalmology consistent with shaking injury.

              Skeletal survey for boney injury held now for blood pressure
       instability, none underlined of the injuries above are consistent with any
       accidental mechanism of injury, but rather are a pattern of repeated blows
       with great force, and in some places abrasions consistent with pinching or
       dragging on the skin.

              The injuries are life threatening with certainty of impairment if the
       child survives. And the pain inflicted was severe. Will follow.

       Dr. Palmer identified photographs of B.S.‟s body, which depicted the injuries and
abrasions on B.S.‟s face and head. She stated that the multiple distinct areas of injury
made it impossible that they were caused by one fall. Dr. Palmer testified that the
bruising on the side of B.S.‟s head was consistent with a blow to the head. She stated
that some of the injuries to B.S.‟s head were more than a day old, and she recalled that it
was the opinion of the other emergency room physicians that B.S.‟s injuries were at
different stages of healing.

        Dr. Palmer identified photographs of injuries to B.S.‟s torso. The injuries “gave
the impression of the skin being pinched with an instrument or with a hand . . . , or
possibly if a belt was used . . . .” Dr. Palmer stated that she concluded that the injuries
were not accidental. She also identified injuries to B.S.‟s legs and bottom, which she said
were not consistent with accidental falls. Dr. Palmer identified a “healed burn” on B.S.‟s
right leg, which she described as non-accidental.


                                             4
       Dr. Palmer testified that B.S.‟s intracranial injury was “substantial and significant”
and not consistent with her falling on any surface. She stated that “there‟s no accidental
mechanism that I can conceive of or that has been presented . . . that would explain
[B.S.‟s injuries] even in some minority much less the totality.” Dr. Palmer further stated:

               [B.S.‟s] injuries were so substantial even in the skin findings as to
       lead to concern for abuse, but then in addition the CT scans and her medical
       course leading to her death were consistent with severe shaking and impact
       injury to the head that‟s just not consistent with an accidental mechanism.

       On cross-examination, Dr. Palmer agreed that she spoke to the police about B.S.‟s
case and relied on their information regarding what proposed injury mechanisms caused
B.S‟s injuries. She agreed that she did not speak with B.S.‟s family about what had
happened or about B.S.‟s behavior and temperament. Dr. Palmer stated that the only
information she was given about B.S. was that she jumped out of her crib multiple times.

       About B.S.‟s injuries, Dr. Palmer agreed that the pinch marks on her skin could
have been caused by a broken piece of B.S.‟s crib, which was shown to her. She agreed
that she did not examine the crib or any of the toys in the room and therefore could not
determine whether they could have caused B.S.‟s injuries, however she restated that
B.S.‟s extensive injuries could not have been sustained from falling on those items. She
explained: “The bruises on [B.S.‟s] body were over every body surface. In areas not
normally impacted by children when they fall. In a number [of areas] that we couldn‟t
even count, in such a way that in many times they ran together[.]” She agreed that
children die from injuries caused by toys or falling out of cribs. She also agreed that if
B.S. was falling off furniture regularly and “running crazy,” that would explain her
multiple bruises of varying ages.

       On redirect-examination, Dr. Palmer testified that she “could not conceive of a
force” that would have caused B.S.‟s injuries to her head within the confines of the
bedroom where the crib was.

      On recross-examination, Dr. Palmer agreed that she had not determined who of the
people living with B.S. had inflicted the injuries on her body.

        Brittany Stinnett, the victim‟s mother, testified that she lived in an apartment with
the Defendant, the victim, her second child, “Phoenix,” and Michael Stinnett. Mr.
Stinnett slept on the couch, and she, the Defendant, and Phoenix slept in a room together.
B.S. had her own room but sometimes slept in the room with Ms. Stinnett and the
Defendant. On Sunday, April 3, Ms. Stinnett took B.S. and Phoenix to church with Ms.
Stinnett‟s mother. Photographs were taken of the family at church, and Ms. Stinnett
identified them. Ms. Stinnett recalled that, after they returned home that day from
                                             5
church, she remembered the Defendant took B.S. into her bedroom. She stated that B.S.
spent most of the time in her bedroom. This was because the Defendant told Ms. Stinnett
that she and B.S. had too strong of a bond and that B.S. would cry all the time when the
Defendant took care of her. She did not believe that she had too strong of a bond with
B.S. Ms. Stinnett denied being scared of the Defendant, stating that she was in love with
him.

        Ms. Stinnett testified that the Defendant would threaten to leave her, and she
would cry and beg him not to leave. Because of this threat, Ms. Stinnett allowed him to
put B.S. in the bedroom. She stated that “this” “happened all the time” and that B.S.
spent most of her time in her bedroom. Ms. Stinnett recalled that she was starting a new
job on Monday, April 4, 2011, and woke up at 4:00 a.m. that morning. When she woke
up, she found the Defendant sitting at a computer with B.S. sitting next to him in a chair.
She did not notice anything odd about B.S.‟s demeanor. Ms. Stinnett recalled that she
left for work before 7:00 a.m. and that the Defendant was the only person awake. She
returned home around 7:45 p.m. that evening, at which time the Defendant put B.S. to
bed, and the couple went grocery shopping. Ms. Stinnett testified that the Defendant put
B.S. to bed most of time. She stated that, when she kissed B.S. before she went to bed,
Ms. Stinnett observed bruising on B.S.‟s head.

       Ms. Stinnett stated that Mr. Stinnett stayed at the apartment with B.S. while she,
the Defendant, and Phoenix went grocery shopping. When they returned from the
grocery store, Ms. Stinnett carried Phoenix and the groceries into the apartment while the
Defendant went straight inside; this was because the Defendant was “on no trespassing”
orders for the apartment complex. B.S. was still in bed when they returned from the
grocery, and Ms. Stinnett did not see her again that night. Ms. Stinnett went to bed while
Mr. Stinnett and the Defendant stayed awake.

       Ms. Stinnett testified that on Tuesday, April 5, 2011, she awoke and got Phoenix
ready to leave the house while the Defendant got B.S. ready to leave. Ms. Stinnett was
due in court that morning, and she remained at the courthouse until about noon, after
which the Defendant‟s sister, Linda, and her child arrived to pick up Ms. Stinnett, the
Defendant, B.S., and Phoenix. The group went to Walmart at approximately 2:30 p.m
and then returned to the apartment. The Walmart security video was played for the jury.
Ms. Stinnett identified in the video herself, the Defendant, the Defendant‟s sister and her
child, B.S., and Phoenix. Ms. Stinnett stated that B.S. was sitting in the shopping cart
and being active, “looking around” and raising her arms. Ms. Stinnett recalled that she
noticed bruises on B.S.‟s face and head while they were at Walmart. After they arrived
back at the apartment, the Defendant put B.S. to bed while Ms. Stinnett took care of
Phoenix.


                                            6
       Sometime later, Ms. Stinnett left the apartment to go to Kroger, Dollar General,
and Western Union. When she returned, Mr. Stinnett was standing outside the apartment
on the phone saying, “the baby‟s not breathing.” When Ms. Stinnett went inside the
apartment she found the Defendant walking out of Ms. Stinnett‟s and his bedroom with
B.S. in his arms. B.S. looked “limp,” and Ms. Stinnett took her from the Defendant and
undressed B.S. Ms. Stinnett called her mom and then went outside with B.S. and told the
apartment complex security guard she needed help. The security guard told her to go
back inside her apartment, and Ms. Stinnett took B.S. back inside and lay on the couch
with her until the ambulance arrived. Ms. Stinnett stated that before she could notify the
security guard of her need for help, the Defendant left the apartment to avoid detection
since he was not allowed on the premises.

       Ms. Stinnett said that ambulance technicians would not let her ride in the
ambulance, so she rode with her mom and Phoenix to the hospital. At the hospital, Ms.
Stinnett was not allowed to see B.S., and doctors also examined Phoenix. Detectives
asked Ms. Stinnett for permission to search her house, which she granted them, and then
she spoke with the detectives. Ms. Stinnett agreed that she did not tell them the truth
about what happened at first. She later gave another statement to detectives.

       While at the hospital, Ms. Stinnett sent text messages to Mr. Stinnett about a safe
in her apartment that she thought might contain a gun. She denied that there were drugs
in the house but said that she, the Defendant, and Mr. Stinnett sometimes snorted
Suboxone and got high from it.

       About B.S.‟s care, Ms. Stinnett testified that the Defendant was the one who
usually fed, clothed, dressed, and put B.S. to sleep. Ms. Stinnett agreed that she was not
involved with B.S.‟s care and that she let the Defendant take care of B.S. because Ms.
Stinnett did not think he would harm the baby. She said that Mr. Stinnett would take care
of B.S. for short periods of time but that the Defendant spent the most time with B.S.

       Ms. Stinnett stated that she lied to the police because she was scared and did not
want the Defendant to get in trouble. Ms. Stinnett agreed that she was arrested in this
case and charged with aggravated child neglect.

       On cross-examination, Ms. Stinnett agreed that she told the police that B.S. liked
to climb on things in her room and that Ms. Stinnett was afraid she would hurt herself.
She stated that the Defendant kept her from having contact with B.S. and told Ms.
Stinnett he would kill her and her family if they left him.

       Ms. Stinnett agreed that she told the police that she bathed B.S. on Friday, April 1
and that she saw bruises on B.S.‟s head at that time. She explained that she told the
police this because B.S. had fallen out of her crib. She agreed that she told the police she
                                             7
had seen B.S. jumping on the bed and fall off and that she had denied that the Defendant
had hurt B.S. She agreed that she told the police that she sometimes bathed B.S. Ms.
Stinnett testified that she had in fact seen B.S. fall out of her crib at the apartment and her
baby bed at Ms. Stinnett‟s mom‟s house. She agreed that she had told the police that the
Defendant used these incidents as excuses as to why B.S. had bruises, but she agreed that
they were not “really excuses” because she had seen them happen. Ms. Stinnett also
agreed that B.S. bruised easily.

       Ms. Stinnett agreed that B.S. had gotten bruises when Ms. Stinnett bathed her
from falling over in the bathtub. She agreed that B.S. often climbed out of her crib or
play pen and that there were many items in her room next to her crib that she could have
fallen on. Ms. Stinnett recalled that, when the Defendant came out of the bedroom
holding B.S. in his arms, he was crying and telling Ms. Stinnett to get B.S. to start
breathing. She agreed that the Defendant had never been violent with her or her children.

      On redirect-examination, Ms. Stinnett denied ever hitting B.S. She stated that,
while Mr. Stinnett did not hit B.S., she had seen the Defendant smack B.S. on the leg and
“whoop[]” her with a shoe.

       Ms. Stinnett recalled that, when she returned to the apartment on April 5, 2011,
B.S. had bruises on her forehead and face and was not breathing. Ms. Stinnett stated that
B.S. bruised easily but that the bruises found on her body at the time of her death were
not from the “normal play” of a toddler, such as falling down or getting her legs stuck in
between the bars on her crib. She reiterated that the Defendant spent “a lot” of time alone
with B.S.

      On recross-examination, Ms. Stinnett agreed that she slept a lot and was asleep
most of the time when the Defendant was with B.S., and thus, had no knowledge of who
was taking care of B.S. aside from the Defendant.

        Michael Stinnett testified that in April 2011, he lived in an apartment with Ms.
Stinnett, the Defendant, B.S., and Phoenix. Mr. Stinnett stated that he was the
Defendant‟s cousin; he testified that he was not related to Brittany Stinnett. Mr. Stinnett
testified that B.S. was not the Defendant‟s daughter. He stated that B.S. was the daughter
of Ms. Stinnett and Norris Monholland, Mr. Stinnett‟s other cousin. He stated that the
Defendant and Mr. Monholland were also cousins. Mr. Stinnett stated that a usual day in
the apartment for him involved him sleeping on the couch, watching television, and
playing video games. He explained that he slept “every chance [he] got” because his
wife was living in a halfway house and he was passing the time while they were apart.
Mr. Stinnett testified that the Defendant‟s usual day was similar to his: playing video
games, watching television, and sleeping a lot. He testified that the Defendant also fed

                                              8
B.S., played with her, and bathed her. During this time, Ms. Stinnett was usually in her
bedroom “all day,” and Mr. Stinnett “hardly ever” saw her.

       Mr. Stinnett testified that he had “never” seen Ms. Stinnett feed B.S. He reiterated
that B.S. was not the Defendant‟s child but that the Defendant was involved in raising
B.S. because he wanted to be her “father figure.” Mr. Stinnett testified that Ms. Stinnett
was the main caretaker for Phoenix, who was a very young baby at the time, and the
Defendant was the main caretaker for B.S.

       Mr. Stinnett testified that the Defendant put B.S. in the bedroom most of the time,
to “break the mother/daughter bond” because when B.S. was around Ms. Stinnett, B.S.
would became “irate, throwing fits, screaming, crying[.]” The Defendant wanted them
separate so B.S. would not be dependent on Ms. Stinnett. Around Ms. Stinnett, B.S acted
like “a normal baby” but around the Defendant, B.S. was “very quiet. Did not move.
[She was] scared.”

       Mr. Stinnett recalled that there were rules about not hugging B.S. or playing with
her when the Defendant was around. B.S. was “always in trouble” or “grounded.” He
described the Defendant as “the man of the house” and in charge of everyone. Mr.
Stinnett and Ms. Stinnett both did whatever the Defendant asked them to do and did not
argue with him to “avoid confrontation” with the Defendant.

      Mr. Stinnett testified that the Defendant was “strict” with B.S. and “sometimes
mean” but that he was not abusive. Mr. Stinnett had never seen anyone hit B.S, but he
had heard the Defendant hit her. He described what he heard:

             [The Defendant] would put [B.S.] down to sleep, ten, [twenty]
      minutes after she was in there she would start crying, wouldn‟t go to sleep,
      so [the Defendant] would wake up and go in there and spank her and lay
      her back down. And sometimes this went on for hours [] a night.

            And sometimes when he would be in the bedroom playing with her
      she would do something she wasn‟t supposed to do and [the Defendant]
      would whip her for that as well.

Mr. Stinnett stated that if B.S. would cry or play with something she was not supposed to
play with the Defendant would “whip” her.

       Mr. Stinnett testified that all three adults in the house used Suboxone. He stated
that Suboxone caused him and Ms. Stinnett to sleep a lot but that the drug had the
opposite effect on the Defendant, who would not sleep but stay awake all night.

                                            9
       Mr. Stinnett agreed that he wrote a timeline of the events from Sunday, April 3 to
Wednesday April 6, 2011. He stated that Sunday was a “normal day,” meaning he played
video games and watched television with the Defendant, talked to his wife on the phone,
and slept. Sunday night, the Defendant gave B.S. a bath, and, when it was over, he yelled
to Mr. Stinnett and Ms. Stinnett that B.S. had thrown up. Mr. Stinnett slept on and off
Sunday night, and woke up at around 2:00 a.m. and found the Defendant and B.S.
watching videos on the computer. The Defendant was trying to put B.S. to sleep in her
bedroom, and at one point, the Defendant went into the bedroom and told Mr. Stinnett to
come look at B.S. Mr. Stinnett found B.S. “hanging on the outside of the crib,” meaning
“she had her arms in between the bars gripping the bars of the crib with her legs” and her
legs were “thigh high [] through the bars.” The Defendant said, “look, I told you she was
getting out of the crib.” B.S. was hanging on the outside of the crib and acting “scared,
frightened. Trying not to fall.” The Defendant then took her out of the bedroom.

       Mr. Stinnett could not remember if he had ingested Suboxone that night, but he
stated that the Defendant had ingested it and had been awake since Saturday. Mr.
Stinnett described the Defendant‟s physical reaction to Suboxone: “[The Defendant]
would be irate at times, full of adrenaline, full of energy, constant sweat, his eyes would
get extremely wide, all he wanted to do was talk, clean, play the PlayStation. He always
had to do something.”

       On Monday, April 4, when Mr. Stinnett woke up, Ms. Stinnett had already left for
work. During that day, Mr. Stinnett, the Defendant, B.S., and Phoenix were present in
the apartment. B.S. was in her bedroom all day, and the Defendant went back and forth
to check on her. Mr. Stinnett did not see B.S. at all on Monday. Mr. Stinnett testified
that, when Ms. Stinnett got home, she walked to B.S.‟s bedroom and then asked the
Defendant what was wrong with B.S.‟s face. The Defendant told Ms. Stinnett that B.S.
had fallen out of her crib nine times. Mr. Stinnett also noticed bruises on B.S.‟s face.
The Defendant and Ms. Stinnett went to the grocery store, and Mr. Stinnett stayed at the
apartment with B.S. B.S. was asleep because, according to the Defendant, she did not
feel well.

       Mr. Stinnett testified that B.S. came out of her bedroom while he was alone with
her in the apartment and that she had bruises “on her face, forehead, below the eyes.”
Mr. Stinnett put B.S. on the kitchen counter and took pictures of her bruises on his cell
phone, which he later gave to the police. Mr. Stinnett identified the photographs he had
taken depicting bruises on the left and right side of B.S.‟s face, above and below her eyes.
Mr. Stinnett testified that there were also bruises on her temple and nose. He stated that
her face was “covered with bruises.” After taking the pictures, Mr. Stinnett gave B.S. a
doughnut and put her on the couch. Soon after, the Defendant walked into the apartment
and asked Mr. Stinnett to help Ms. Stinnett bring groceries into the house, which Mr.

                                            10
Stinnett did. He did not show the pictures to the Defendant or Ms. Stinnett. The
Defendant put B.S. back in her bed, saying she was “sick and sleepy.”

       Mr. Stinnett woke up on Tuesday, April 5, and took his wife, Danielle Stinnett, to
a meeting with her probation officer. He then returned to the apartment and was there
alone until about 1:00 p.m. when the Defendant and Ms. Stinnett returned with B.S. and
Phoenix. Mr. Stinnett‟s wife came over to the apartment as well. B.S. remained in her
bedroom throughout the entire day. Ms. Stinnett then left the apartment, and, while she
was gone, the Defendant brought B.S. out of her room and said that B.S. was “acting
weird” and that he needed help. Mr. Stinnett stated that B.S. “couldn‟t catch her breath,”
so he decided to call the police. The Defendant did not want him to call the police
because there was an outstanding warrant for the Defendant‟s arrest, but Mr. Stinnett
called anyway. The ambulance arrived and transported B.S. Mr. Stinnett did not see the
Defendant again.

       Mr. Stinnett recalled that on Tuesday night, April 5, when the Defendant brought
B.S. out of her room, she was “pale.” Mr. Stinnett tried to revive B.S. and, when he
could not, he called the police “within two minutes.”

       Mr. Stinnett later gave a statement to police, during which he did not tell them that
the Defendant was with B.S. that night. He instead told them that the Defendant‟s sister
was with him in the apartment. Mr. Stinnett did this because he was afraid of what the
Defendant would do to him if the Defendant were arrested. The Defendant “made it
clear” to Mr. Stinnett that he was not to tell anyone that the Defendant was at the
apartment. Mr. Stinnett agreed that he gave two statements to the police.

       Mr. Stinnett testified that his cousin, Mr. Monholland, slept with Mr. Stinnett‟s
wife and got her pregnant. Mr. Stinnett stated that, from the moment he saw B.S., he
knew she was Mr. Monholland‟s baby. Mr. Stinnett stated that he had bad feelings
towards Mr. Monholland during April of 2011, because he had impregnated Mr.
Stinnett‟s wife, but Mr. Stinnett denied that he took his anger towards Mr. Monholland
out on B.S. Mr. Stinnett denied beating B.S. or participating in her care in any manner.

        Mr. Stinnett recalled that on Sunday, April 3, B.S. did not have bruises on her
face.

       On cross-examination, Mr. Stinnett agreed that he had lied to the police when he
told them that he worked sixty hours per week at the time B.S. died. He agreed that he
told police he did not live at the apartment. He stated that the Defendant had not been
violent towards Ms. Stinnett. Mr. Stinnett agreed that he had lied throughout the
investigation of this case. He stated that he felt threatened by the Defendant and was
afraid of him but stayed at the apartment because he did not have anywhere else to sleep.
                                            11
        Mr. Stinnett stated that the Defendant would sometimes punish B.S. by spanking
her when she put her fingers in electrical outlets. He agreed that this was because it was
a safety issue. Mr. Stinnett testified that B.S. did not sleep exclusively in her crib and
that the instances when she slept somewhere else “were all within the week that this
situation happened.” He agreed that he and the Defendant were the only people present
in the apartment when B.S. was dying. He however reiterated that he did not see B.S.
one time that day, while the Defendant was in and out of B.S.‟s bedroom, checking on
her and playing with her. Mr. Stinnett agreed that B.S. was walking and seemed fine
when the group returned from Walmart on Tuesday, April 5.

       Mr. Stinnett agreed that he told the police that he thought the Defendant‟s motive
for abusing B.S. was because “he doesn‟t like her daddy,” Mr. Monholland. Mr. Stinnett
agreed that his wife was having an affair at some point with Mr. Monholland and that she
got pregnant by him and later had an abortion. He agreed that this made him upset with
Mr. Monholland. Mr. Stinnett also agreed that he was a suspect in B.S.‟s death because
he was the only other person in the apartment besides the Defendant that day. Mr.
Stinnett reiterated that his anger towards Mr. Monholland about the affair would not have
caused him to harm B.S.

        On redirect-examination, Mr. Stinnett confirmed that the Defendant was alone
with B.S. on Tuesday, April 5. He agreed that the Defendant was “raising” B.S. He
stated that, if B.S. was screaming or crying, he did not feel free to intervene and that the
Defendant always went to her. Mr. Stinnett said: “I couldn‟t even talk to [B.S.] without
[the Defendant] telling me, don‟t talk to her, she‟s grounded. Don‟t look at her. She‟d
wave at me, he‟d smack her hands down. You‟re grounded.” Mr. Stinnett said he
thought the way the Defendant was raising B.S. was “a little harsh at times” but,
otherwise, he felt that the situation was normal.

       Krista Sheppard testified that she worked at the Knoxville Police Department as an
investigator in the major crimes unit. Investigator Sheppard recalled that she responded
to the University of Tennessee Hospital on April 5, 2011, where she saw B.S. She
described B.S., who was on a stretcher, as having “a lot of bruising” and tubes coming
out of her nose. Investigator Sheppard spoke with Investigator Tonkin, who had
interviewed Ms. Stinnett, and he reported that Ms. Stinnett said that someone else was
taking care of B.S. when B.S. fell out of her crib. Investigator Sheppard observed further
conversation between Ms. Stinnett and Investigator Tonkin, during which Ms. Stinnett
said that a “family friend,” Mr. Stinnett, was taking care of B.S. when she had fallen out
of her crib.

      Investigator Sheppard then attempted to create a timeline of “who had seen [B.S.]
without bruises.” She said that the bruising on B.S.‟s face was not “all fresh.”
                                            12
Investigator Sheppard learned that Ms. Stinnett had a boyfriend, the Defendant, who had
also been at the apartment that day. Investigator Sheppard transported Ms. Stinnett to the
police department to interview her further. In the interview, Ms. Stinnett told
Investigator Sheppard that Norris Monholland was B.S.‟s father, but he had only seen
B.S. once. During that interview, Ms. Stinnett described a timeline of events that
occurred the weekend prior to B.S.‟s death, beginning with Friday, April 1. Ms. Stinnett
told Investigator Sheppard that on Friday B.S. was “fine” but that she had noticed B.S.
had some bruises on her head and on the inside of her knees. She stated that the
Defendant told her that B.S. had fallen out of her crib on Friday while Ms. Stinnett was at
the store. Ms. Stinnett told the investigator that she was “terrified” of the Defendant.
Ms. Stinnett recalled that, two months prior, B.S. had a bruise on her back, and the
Defendant told Ms. Stinnett that B.S. had crawled underneath her crib and hit her back.
Ms. Stinnett said that she and the Defendant took care of B.S., and sometimes Ms.
Stinnett‟s mother would take B.S. to her house. Ms. Stinnett recalled that B.S. had fallen
off of Ms. Stinnett‟s bed and bruised her ribs and that B.S. had also fallen in the bathtub
and bruised her bottom. She stated that the Department of Children‟s Services had
opened a case because of the bruise on B.S.‟s bottom, but nothing resulted from the
investigation. Ms. Stinnett stated that B.S. “climb[ed] on everything” and “g[ot] little
bruises.” Ms. Stinnett speculated that B.S. could have hit her head on the floor when she
fell out of her crib. The Defendant told Ms. Stinnett that, when B.S. fell out of her crib,
she also cut her forehead.

       Ms. Stinnett told Investigator Sheppard that B.S. slept sixteen hours on Friday
night and seemed normal when she woke up on Saturday. Ms. Stinnett‟s mom took care
of B.S. on Saturday afternoon. On Sunday morning, B.S. seemed “fine,” and Ms.
Stinnett, her mother, B.S., and Phoenix went to church together. Later on Sunday, Ms.
Stinnett fed B.S. and gave her a bath. Ms. Stinnett worked all day the next day, Monday,
while the Defendant took care of B.S., and, on Monday night, she went to Kroger with
the Defendant while B.S. stayed home with Mr. Stinnett. On Tuesday, Ms. Stinnett woke
up and she, the Defendant, B.S., and Phoenix all went to court. They then went to
Walmart with the Defendant‟s sister and her daughter. Ms. Stinnett described B.S. as
“fine” while they were shopping at Walmart. The group then returned home. Based on
Ms. Stinnett‟s timeline, Investigator Sheppard obtained evidence to confirm Ms.
Stinnett‟s account, such as receipts and video recordings, from the locations where Ms.
Stinnett had been with B.S. Ms. Stinnett stated that it was later Tuesday night that, after
she returned from the store, she found Mr. Stinnett outside the apartment saying, “your
baby‟s not breathing.”

        Investigator Sheppard stated that, at some point, the Defendant was taken into
custody on an arrest warrant, and she interviewed him on April 6, 2011. The recorded
interview was played for the jury. In the interview, the Defendant stated that he had been
living in the apartment for approximately four months. He stated that he slept in a room
                                            13
with Ms. Stinnett and Phoenix and that B.S. slept in her own room. He stated that he had
noticed “real bad” bruises on B.S.‟s face and legs, as well as a carpet burn on her face
and that both her lips were “busted.” He stated that, when Ms. Stinnett got home “that
night,” April 4, 2011, she asked the Defendant why B.S. had bruises on her. He and Mr.
Stinnett told Ms. Stinnett that B.S. had fallen out of her crib because “that‟s the only
explanation we had.” He observed the same bruises and marks when he had given B.S. a
bath that day, and he thought that it looked like B.S. had been beaten.

       In the interview, the Defendant stated that Ms. Stinnett had a job, and, since the
Defendant did not have one, he took care of B.S. He said that B.S. got little bruises all
over her from where she would play and fall down. The Defendant said that Ms. Stinnett
started her job, and she left the apartment at around 6:10 a.m. on April 5. After she left,
the Defendant went back to sleep, and Mr. Stinnett, B.S., and Phoenix all remained
asleep. Throughout the day, the Defendant would wake up when either Phoenix or B.S.
needed to be fed or played with and then he would lay down with them or let them play.
When Ms. Stinnett returned home from work that evening, she and the Defendant went to
Walmart with Phoenix, leaving B.S. at the apartment with Mr. Stinnett. Later that
evening, Ms. Stinnett went out to get some food, and the Defendant went to B.S.‟s room
to check on her. The Defendant described walking into B.S.‟s room and finding her:

              When I went to wake [B.S.] up, I laid her in our bedroom floor, went
      to get the wipes. When I came in there is when she was curled up in a ball
      moaning. I picked her up. . . . She wasn‟t responding to me, which I
      thought she was having a seizure because [Ms. Stinnett] has them.


The Defendant denied being abusive towards B.S. or having any knowledge about how
she sustained her injuries, other than falling out of her crib.

       Investigator Sheppard testified that the crime lab unit was sent to the apartment
with instructions to measure the distance from the top of the crib to the floor and the top
of the bed to the floor. The unit was also instructed to pull up the carpet on the floor to
confirm that there was padding underneath and to measure the depth of the carpet and the
padding. Investigator Sheppard then took Ms. Stinnett back to the apartment, and they
walked through it together. Mr. Stinnett and his wife were present at the apartment.
Another investigator accompanied them to the apartment, and he interviewed Mr. Stinnett
in his police vehicle. During the walk through of the apartment, Ms. Stinnett showed
Investigator Sheppard where the occupants slept and showed her where B.S. had fallen
out of her crib. Investigator Sheppard observed toys in B.S.‟s room. She collected into
evidence the crib, the crib mattress, the “stick,” the bedding, and the receipts.
Investigator Sheppard collected the stick because it was “out of place.” Investigator

                                            14
Sheppard testified that Ms. Stinnett acted nonchalant, at times giggling, throughout their
visit to the apartment.

        Investigator Sheppard went back to the hospital when doctors removed B.S. from
life support, and the investigator requested an autopsy, which took place the next day.

       On cross-examination, Investigator Sheppard agreed that there were multiple toys
found in B.S.‟s bedroom but that she only collected one to place into evidence. She
stated that the Defendant told her that B.S.‟s crib was broken because she had been
climbing out of it. Investigator Sheppard reiterated that she spoke with Ms. Stinnett
several times during the investigation and that, at times Ms. Stinnett exhibited
inappropriate behavior in light of the situation, such as laughing and giggling. She stated
that both Ms. Stinnett and Mr. Stinnett had lied to her during the investigation and that
the various statements given at various times by Mr. Stinnett and Ms. Stinnett were
“inconsistent.” She agreed that both Mr. Stinnett and the Defendant told her that B.S.
was not eating in the days leading up to her death. She agreed that Mr. Stinnett and his
wife both offered a possible motive for the Defendant to hurt B.S. Investigator Sheppard
was “advised” that both Mr. Stinnett and the Defendant were “upset” with Mr.
Munholland.

        Dr. Darinka Mileusnic-Polchan, the Knox County Chief Medical Examiner,
testified as an expert witness in the fields of forensic pathology, anatomic pathology, and
clinical pathology. She stated that she had performed the autopsy on B.S.‟s body on
April 11, 2011.

       Dr. Mileusnic-Polchan‟s autopsy report was entered as evidence into the record.
She identified photographs of B.S.‟s injuries, taken at the hospital and during the autopsy,
and gave the following description of B.S.‟s injuries depicted in the photographs:

              Th[ese are] some of the photographs taken before the internal
       examination started. And the lesion or healing scab that we saw on [B.S.‟s]
       forehead in the hospital is still there. Again, there are a couple of other
       contusions that are visible now in [B.S.‟s] hairline of the right temple.

              Again, the size of these contusions [on B.S.‟s head] vary from like
       one inch on the right temple that goes into the hairline to the series of
       contusions that actually spread from [B.S.‟s] eye toward [her] ear. [The
       contusions] varied in size from .4 to .5 inch, half an inch. There was also
       another set of series of contusions that ran from the level of the ear toward
       the chin. And then there was also another contusion right here [] close to
       the core of the mouth.

                                            15
              A healing scab that was not visible before in [B.S.‟s] eyebrow. . . .

              There were also a couple of contusions on the nose. As I said, the
       size varied. The distribution [of the contusions] was very telling of
       characteristics, because these are all contusions that the number and
       distribution are inconsistent with any kind of child play. Obviously this is
       child abuse.

Dr. Mileusnic-Polchan was shown more photographs of B.S.‟s body, taken during the
autopsy, and she described for the jury what was depicted, including the areas of
contusions and lesions all over B.S.‟s body. Dr. Mileusnic-Polchan testified that, while
children can get contusions from child‟s play, B.S.‟s contusions and lesions “were not
characteristic distribution for child play,” based on their “pattern,” that she compared to a
set of train tracks. Dr. Mileusnic-Polchan testified that the contusions founds on B.S.‟s
torso were “very unusual” for child‟s play. Dr. Mileusnic-Polchan identified injuries to
B.S.‟s head, which she described as “quite deep.” She testified that she counted fifty-one
total injuries on B.S.‟s body and said that many were in a pattern formation inflicted by
something that would “leave imprints – the knuckles maybe from the back of the hand.”

       Dr. Mileusnic-Polchan testified that the color of B.S.‟s bruises allowed for her to
estimate the age of the bruises. She stated that the areas of injuries with “acute
hemorrhage” had been inflicted just prior to B.S.‟s hospitalization and that some other
areas of injuries were a couple of weeks or a month old. Dr. Mileusnic-Polchan testified
that she pulled back B.S.‟s scalp, revealing a huge bruise on B.S.‟s skull. She testified
that B.S.‟s head injuries were blunt force injuries, due to a “hard slap,” a punch, or
grabbing her ear and twisting it.

      Dr. Mileusnic-Polchan testified about her autopsy report, beginning with a
“general description of [B.S.‟s] body . . . .” She stated:

              One thing that was concerning right away was that the height of this
       child was about 32 inches which placed her within the 50th percentile. And
       the weight was about 20 pounds which was actually a little below the third
       percentile, that was very concerning. And one of the things that we always
       do [is] request the medical records [from the child‟s previous doctor or
       hospital visits.] . . . [L]ooking at the history [of B.S] was very concerning
       that from birth until about 15 months this child was progressing really
       beautifully and growing and following the charts around the 50th percentile
       or above and then it was a sudden drop. So between the age of 15 months
       and 19 months something happened to cause the sudden drops, that‟s what
       the autopsy also confirmed.

                                             16
Dr. Mileusnic-Polchan went on to review the list of injuries on B.S.‟s body as follows:

               In the blunt force injuries [to B.S.‟s] head I listed them from number
       one to number 26. I started with the top of the head, the contusion that I
       described, and then on the forehead there w[ere] several contusions that
       ranged in size from one inch to 1.2 and 1.6 inches. So that‟s the frontal
       scalp, right forehead, right forehead above the eye, left forehead. And then
       on [B.S.‟s] nose there was also bruising on the left side, a couple of quarter
       inch bruises. And the tip of [B.S.‟s] nose also had a bruise . . . .

Dr. Mileusnic-Polchan went on to describe the multiple injuries to B.S.‟s head. She
testified that her main concern was not simply the “multiplicity” of the injuries but also
the extent of them. She stated that peeling away the scalp from the skull confirmed “not
only the extent of these contusions [on B.S.‟s] head” but “also the depth,” which revealed
that her injuries were “serious.”

       Dr. Mileusnic-Polchan testified about the injuries to B.S.‟s torso, which she
described as blunt force injuries. She testified that these injuries were in a similar pattern
as those she found on the legs, showing that whatever came into contact with B.S.‟s torso
also caused the injuries to her legs. She found extensive bruising and contusions on
B.S.‟s rib cage, hips, buttocks, and back. She stated that the injuries to B.S.‟s legs could
not be explained from a child falling during normal activity. B.S‟s leg injuries were on
the inner sides and back of the legs and that was “not where the kids get frequently
injured” during play “in this sort of frequency.”

       Based on her list of fifty-one separate injuries on B.S.‟s body, Dr. Mileusnic-
Polchan testified that it was an area of argument that B.S. was hit fifty-one different times
or possibly 100 times. The injuries however established with certainty, based on “the
distribution and the size and the number of injuries,” that they were not caused by normal
childhood injury.

       Dr. Mileusnic-Polchan testified about the internal examination of B.S.‟s body.
She stated that there was “not much” trauma in the torso area and that the primary area of
trauma was B.S.‟s head. As such, she focused her examination on B.S.‟s head, which she
described as follows:

              [F]requently there‟s an injury in [a] big vein or sinus and some of the
       veins are called bridging veins that‟s going to start bleeding. And that‟s
       what happened in [B.S.‟s] case, there were tears in the veins and they
       caused the major bleeding. . . . [T]here was a thick layer of subdural
       hemorrhage. That‟s an indication of trauma. Unless there‟s some

                                             17
       malformation or some congenital problem with blood vessels, which [B.S.]
       did not have, that‟s trauma until proven otherwise.

Dr. Mileusnic-Polchan testified that the major trauma to B.S.‟s brain had caused her to
suffer a hemorrhage in the retina in both of her eyes; the hemorrhage to her left eye was
“extensive” to her “entire retina.” She stated that, had she lived, B.S. would have had
“major problems with her vision.” She testified that B.S. had two bruises on the back of
her head that caused a “true deep hemorrhage” “all the way into the brain itself.” Dr.
Mileusnic-Polchan testified that, had B.S. survived, she would have likely been blind
because “the whole area of the brain in the back of the head was destroyed with a bruise.”

        Dr. Mileusnic-Polchan testified that B.S.‟s head injuries could not have been
accidental. About the hemorrhage on the back of B.S.‟s head and the bruising on the
brain, she testified that those injuries could not have been sustained from falling out of a
crib. She stated that falls could certainly cause head trauma and even a skull fracture but
that a fall would not cause a bruise on the brain. Dr. Mileusnic-Polchan testified that the
cause of B.S.‟s death was likely the “blow to the back of the head that caused the bruising
on the brain,” however she also felt that the “cumulative” injuries caused B.S.‟s death.
Dr. Mileusnic-Polchan testified that she had viewed the security video from Walmart that
was recorded on the day of B.S.‟s death and showed B.S. moving and reaching for things.
Dr. Mileusnic-Polchan stated that B.S. received the injury to her head after the Walmart
video was recorded.

       Dr. Mileusnic-Polchan testified that, in her opinion, B.S. was a “victim of battered
child syndrome, and the manner of [her] death was homicide.” She stated that B.S. died
because her “brain was compressed and lacked circulation because of the injury due to
the subdural hemorrhage combined with cerebral contusions which are a consequence of
blunt force head injuries.”

       On cross-examination, Dr. Mileusnic-Polchan testified that B.S.‟s injuries had not
been sustained during one incident; some injuries were “underlying old contusions” and
some were “fresh.” She agreed that she did not visit the apartment, although that was
something her office typically did. She agreed that she did not interview any of B.S.‟s
family members. She also agreed that, if B.S. “was held 40 inches off the floor by her
feet and dropped onto her head,” that could have caused her injuries.

       Dr. Mileusnic-Polchan testified that she could state “for a fact” that B.S.‟s injuries
were not caused by an accident and that was why she categorized it as a homicide. Dr.
Mileusnic-Polchan testified that B.S. was “murdered” and “badly abused,” but stated that
she did not know who committed the abuse.


                                             18
       On redirect-examination, Dr. Mileusnic-Polchan testified that B.S. suffered her
brain injury on April 5, 2011.

         On behalf of the Defendant, Arthur Lee Hubbard then testified that he had known
the Defendant since 2001 and that he had stayed at the apartment in 2010 or in early
2011. He stated that Mr. Stinnett was also living there at the time. Mr. Hubbard stated
that he observed the Defendant taking care of B.S. and Phoenix while Ms. Stinnett was at
work. He testified that he had seen both the Defendant and Ms. Stinnett discipline B.S.
He stated that the Defendant had a loving and caring relationship with B.S. and that he
did not keep her from seeing people. Mr. Hubbard did not see anything occur that would
make him think the Defendant was not a good caregiver. Mr. Hubbard described B.S. as
a “little daredevil.” He testified that he did not see anyone abuse her in the apartment.

       On cross-examination, Mr. Hubbard agreed that he was in prison for attempted
robbery and assault at the time of trial. He agreed that he was not living in the apartment
in March or April of 2011. He agreed that, when he was staying in the apartment, the
Defendant was B.S.‟s caregiver. He stated that he was in and out of the apartment and
not paying “a hundred percent” attention to B.S.

       The defense recalled Investigator Sheppard, and she testified that she had
contacted Arthur Lee Hubbard during the trial to ask him if he had seen anything happen
in the apartment when he had lived there. She stated that Mr. Hubbard did not provide
her with any information.

       Based on this evidence, the jury convicted the Defendant of felony murder
committed during the perpetration of aggravated child abuse and aggravated child abuse.
The trial court sentenced the Defendant to life in prison for the felony murder conviction
with a consecutive twenty-year sentence for the aggravated child abuse conviction. It is
from these judgments that the Defendant now appeals.

                                     II. Analysis
                                A. Motions for Mistrial

      On appeal, the Defendant claims that the trial court erred when it denied several
motions for mistrial made by the Defendant. We will address each motion in turn.

                              1. Mr. Stinnett’s Testimony

      First, the Defendant claims that the trial court should have granted a mistrial when
Mr. Stinnett violated the trial court‟s order not to testify about the Defendant‟s prior
criminal history. Mr. Stinnett testified that he was afraid of the Defendant because the
Defendant owned guns and a mask, and the Defendant argues that this testimony was
                                            19
ruled as inadmissible by the trial court and prejudiced the Defendant in the eyes of the
jury. The Defendant argues that this Court “has to assume” that the State purposefully
elicited the answer from Mr. Stinnett and that this “deliberate action” warrants a new
trial. The State responds that Mr. Stinnett did not elaborate on his statement and made no
mention of robberies or other prior crimes. The State argues there was no manifest
necessity requiring a mistrial based on Mr. Stinnett‟s statements, and that the trial court
offered to give a curative instruction to the jury, which the Defendant declined.

       On direct examination, the prosecutor asked Mr. Stinnett why he lied to
investigators, and he responded that he was scared. Mr. Stinnett testified that he was
scared specifically of the Defendant, and, when asked why, he stated that “from what [he
had] seen, [the Defendant] had guns. He had [ski] masks.” Defense counsel objected at
this point, and the trial court held a jury-out hearing during which the trial court
acknowledged that it had granted a Motion in Limine precluding the State‟s witnesses
from discussing the Defendant “having possessed weapons and . . . having committed
aggravated burglaries.” The prosecutor argued that he was trying to elicit testimony from
Mr. Stinnett that he felt threatened by the Defendant. The trial court stated that it
concluded that there was no manifest necessity for a mistrial but offered to give a
curative instruction to the jury that they “must disregard” any of Mr. Stinnett‟s testimony
about guns or ski masks and that they could not consider the prosecutor‟s question or Mr.
Stinnett‟s answer. The Defendant declined to have a curative instruction given to the
jury, arguing that it would draw more attention to the issue. The Defendant also argued
that he was now forced to cross-examine Mr. Stinnett on his testimony, thus drawing the
jury‟s attention to the issue.

       The purpose of a mistrial is to correct the damage done to the judicial process
when some event has occurred that would preclude an impartial verdict. See Arnold v.
State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). A mistrial is appropriate “when
the trial cannot continue, or, if the trial does continue, a miscarriage of justice will
occur.” State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The
decision of whether to grant a mistrial is within the sound discretion of the trial court.
State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a mistrial
should be declared only if there is a manifest necessity for such action. Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). One description of manifest necessity is
that, “[i]f it appears that some matter has occurred which would prevent an impartial
verdict from being reached,” a mistrial must be declared. Id. Additionally, a manifest
necessity exists when “no feasible alternative to halting the proceedings” exists. State v.
Knight, 616 S.W.2d 593, 596 (Tenn. Crim. App. 1981). The burden of establishing a
manifest necessity lies with the defendant. State v. Seay, 945 S.W.2d 755, 764 (Tenn.
Crim. App. 1996). This Court will not disturb that decision unless there is an abuse of
discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams, 929
S.W.2d 385, 388 (Tenn. Crim. App. 1996).
                                            20
        In determining whether there is a “manifest necessity” for a mistrial, “„no abstract
formula should be mechanically applied and all circumstances should be taken into
account.‟” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State,
218 Tenn. 378, 403 S.W.2d 750, 753 (Tenn. 1966)). Although Tennessee courts do not
apply any exacting standard for determining when a mistrial is necessary after a witness
has injected improper testimony, this Court has considered: (1) whether the improper
testimony resulted from questioning by the State, rather than having been a gratuitous
declaration; (2) the relative strength or weakness of the State‟s proof; and (3) whether the
trial court promptly gave a curative instruction.2 See State v. Demetrius Holmes, No.
E2000-02263-CCA-R3-CD, 2001 WL 1538517, at *1-4 (Tenn. Crim. App., at Knoxville,
Nov. 30, 2001); State v. William Dotson, No. 03C01-9803-CC-00105, 1999 WL 357327,
at *4 (Tenn. Crim. App., at Knoxville, June 4, 1999).

       In light of the list of non-exclusive factors, we conclude that the factors weigh in
favor of the trial court‟s denial of a mistrial. There is nothing in the record that supports
the Defendant‟s argument that the State intentionally elicited this testimony from Mr.
Stinnett. The State contended during the jury-out that it was simply trying to elicit Mr.
Stinnett‟s testimony that he felt threatened by the Defendant and stated that it had
specifically admonished Mr. Stinnett not to testify to anything related to prior robberies
or gang involvement. The trial court offered to give a curative instruction to the jury,
which the Defendant declined. Further, the State produced ample evidence to sustain a
conviction against the Defendant. Accordingly, we conclude that the trial court did not
abuse its discretion when it declined to declare a mistrial at this point in the proceedings.
The Defendant is not entitled to relief on this issue.

                                        2. Brady Violations

       The Defendant next claims that the trial court should have granted a mistrial on the
basis that the State failed to turn over Brady material, specifically that Mr. Stinnett knew
that B.S.‟s father had had an affair with Mr. Stinnett‟s wife that resulted in pregnancy and
an abortion, giving Mr. Stinnett the motive to hurt B.S. The Defendant also claims that
Investigator Sheppard interviewed Mr. Hubbard during the trial and did not make the
information she elicited from him available to the Defendant. The State first responds
that the identity of the father of Mr. Stinnett‟s wife‟s baby was not Brady material
because the State was “not in exclusive control” of the information. The State further
responds that it had no knowledge of the identity of the father of this baby. Finally, the
State responds that Investigator Sheppard learned nothing from Mr. Hubbard when she

2
 These factors are non-exclusive and may not be pertinent in every case. Dotson, 1999 WL 357327, at
*4; see Mounce, 859 S.W.2d at 322 (holding that determination of propriety of mistrial is not subject to
mechanistic determination and should be made on the facts of each individual case).
                                                  21
interviewed him during trial. As such, the State claims that the Defendant has failed to
show that the trial court should have granted a mistrial on these grounds.

       In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that
“suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” In order to establish a due
process violation under Brady, four prerequisites must be met:

       1. The defendant must have requested the information (unless the evidence
       is obviously exculpatory, in which case the State is bound to release the
       information, whether requested or not);

       2. The State must have suppressed the information;

       3. The information must have been favorable to the accused; and

       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a Brady
violation rests with the defendant, and the violation must be proven by a preponderance
of the evidence. Edgin, 902 S.W.2d at 389.

       The Defendant moved for a mistrial, claiming that the State had withheld evidence
about the identity of the father of Mr. Stinnett‟s wife‟s child. The State argued that it had
no knowledge of who the father was and that it only knew that Mr. Stinnett‟s wife had
had an affair. The State said “there was no mention of who she got pregnant by” and
acknowledged that “[l]ots of people in this case got pregnant by lots of different people.”
The State argued that it had “no indication of who it was or any relation to this case”
when Mr. Stinnett and his wife gave their statements. The trial court denied the
Defendant‟s motion for mistrial on the basis that there was no manifest necessity for a
mistrial based on this allegedly withheld information.

        We have reviewed the evidence in question, and we conclude that no Brady
violation was committed by the State. There is no evidence that the State had the
information about the identity of the baby‟s father or that the State suppressed the
information. On the contrary, the State argued that it did not know the identity, and the
trial court acknowledged that the information was unclear about who the father of the
baby was. As such, the Defendant has not established by a preponderance of the
evidence that a Brady violation was committed. The Defendant is not entitled to relief.


                                             22
       As to the Defendant‟s motion relative to the information provided by Mr.
Hubbard, he risks waiver by failing to make an argument in his brief specific to this issue.
Even so, based on the testimony of Investigator Sheppard and Mr. Hubbard, there is no
evidence that any information favorable to the Defendant was provided by Mr. Hubbard.
In fact, the testimony at trial was that Mr. Hubbard provided no information, and he did
not reside at the apartment at the time of these events. The Defendant has failed to
establish that he was entitled to a mistrial, and he is not entitled to relief on this issue.

                              B. Sufficiency of the Evidence

       The Defendant challenges the sufficiency of the evidence to sustain his conviction
for aggravated child abuse. Specifically, he claims that there was insufficient evidence to
show: (1) that he inflicted the injuries on B.S.; and (2) that a crime was committed. The
State responds that the evidence was sufficient for a jury to find that the Defendant
committed aggravated child abuse. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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 Tenn. R.
App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).

       “The standard of review [for sufficiency of the evidence] is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial
                                             23
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978);
State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000).

        Aggravated child abuse occurs when the accused knowingly, other than by
accidental means, treats a child under the age of eighteen in such a manner as to inflict
injury and the act of abuse results in serious bodily injury to the child. T.C.A. § 39-15-
401(a)(2014); § 39-15-402(a)(1) (2014). Felony murder is “[a] killing of another
committed in the perpetration of or attempt to perpetrate any first degree murder, act of
terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse,
aggravated child neglect, or aircraft piracy.” T.C.A. § 39-13-202(a)(2) (2014).

       The evidence, considered in the light most favorable to the State, showed that
B.S.‟s death was caused by child abuse. B.S. sustained a total of fifty-one injuries to her
body, most severely a hemorrhage in her brain caused by blunt force trauma. B.S.
suffered “repeated blows of great force,” and the “whole area” of her brain on the back of
her head was “destroyed” by a bruise. In that area, B.S. suffered a subdural hemorrhage,
which indicated blunt force trauma. The medical examiner concluded with certainty that,
based on “the distribution and the size and the number of injuries,” B.S.‟s injuries were
not caused by normal childhood injury and were not accidental. Dr. Palmer testified that
there was “no accidental mechanism” that she could conceive of “that would explain
[B.S.‟s injuries] even in some minority much less the totality.” Finally, the medical
examiner testified that, in her expert opinion, B.S. was a “victim of battered child
syndrome and the manner of [her] death was homicide.” This evidence is sufficient from
                                            24
which the jury could conclude B.S. suffered serious bodily injury by means that were not
accidental and that B.S. died as a result of her injuries. As such, the evidence is sufficient
to support convictions for aggravated child abuse and felony murder in the perpetration
of aggravated child abuse.

       As to the Defendant‟s argument that he did not injure and kill B.S., the evidence
presented was that he was B.S.‟s primary caregiver, which included clothing, feeding,
changing her diaper, and putting her to bed on a daily basis. The Defendant, Mr. Stinnett,
and Ms. Stinnett all stated to investigators or testified that the Defendant was the primary
caregiver. The decline in B.S.‟s development, according to the medical examiner, began
four months prior to her death, the time the Defendant stated that he had moved into the
apartment. The medical examiner said that the injury to B.S.‟s head, which led to her
subdural hemorrhage, occurred in the hours after she went to Walmart. During this time,
and in the hours leading up to B.S.‟s hospitalization, the Defendant was the person taking
care of B.S. and checking on her while she was in her bedroom. This is sufficient
evidence for a jury to conclude that the Defendant was guilty of aggravated child abuse.
Accordingly, the evidence was sufficient to support the jury‟s finding beyond a
reasonable doubt that the Defendant committed aggravated child abuse and felony
murder in the perpetration of aggravated child abuse.

                                      III. Conclusion

      In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.

                                                    ________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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