                                                                                         03/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 13, 2017

        STATE OF TENNESSEE v. MATTIE FLORENCE SWEENEY

                Appeal from the Criminal Court for Davidson County
                  No. 2015-A-300     J. Randall Wyatt, Jr., Judge
                     ___________________________________

                           No. M2016-02372-CCA-R3-CD
                       ___________________________________


Defendant, Mattie Florence Sweeney, was found guilty of gross neglect of an impaired
adult as charged in Count One and guilty of neglect of an impaired adult in Count Two.
The trial court merged the two convictions into a single conviction for gross neglect of an
impaired adult, and sentenced Defendant to a term of five years “to serve.” After the
denial of a motion for new trial, Defendant initiated this appeal. On appeal, Defendant
argues: (1) the trial court committed plain error by constructively amending the
indictment during the jury charge; (2) the trial court erred by admitting testimony about
the victim’s driver’s license record; (3) the trial court erred by admitting lay testimony
about the victim’s cough and the condition of his skin; (4) the trial court erred by
admitting a photograph of the victim’s buttocks into evidence; and (5) the evidence was
insufficient to support the convictions. After a review, we affirm the judgments of the
trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Dawn Deaner, District Public Defender, and Emma Rae Tennent (on appeal) and
Jonathan Wing and Kathryn Hansel (at trial), Assistant District Public Defenders, for the
appellant, Mattie Florence Sweeney.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and Jude Santana, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION
        On December 11, 2014, the police found the victim, John Sweeney, living in
Defendant’s apartment in deplorable conditions. The victim, who was Defendant’s
father, was in his late 80s. Subsequently, in January of 2015, Defendant was indicted by
the Davidson County Grand Jury in a multi-count indictment with one count of abuse or
gross neglect of an impaired adult in violation of Tennessee Code Annotated section 71-
6-119 and two counts of abuse or neglect of an adult in violation of Tennessee Code
Annotated section 71-6-117. Before trial, the State was allowed to amend the indictment
to allege one count of gross neglect of an impaired adult and one count of neglect of an
adult.

        At trial, Officer Shedie Herbert of the Metropolitan Nashville Police Department
testified that he was working as an officer assigned to the Metropolitan Housing and
Development Agency Task Force. On December 11, 2014, he responded to Defendant’s
apartment on a matter unrelated to the victim. Officer Herbert was given consent to
search the apartment by Defendant and, as part of his search, started to locate all of the
people in the apartment. Defendant informed Officer Herbert that her “Dad” was
upstairs. Officer Herbert went upstairs and tried to open what he thought was a closed
bedroom door. According to Officer Herbert:

      The first thing I noted as I opened the door was that there was something
      leaning against the door and I had to push a little bit and drag it out. I
      noticed that there were two to three adult diapers that had been overfilled
      with feces and had dried by this point that they were leaning against the
      door. I also noted that the floor immediately in front of the door was
      matted with different layers of feces, all had dried at different rates . . . .

Officer Herbert peered into the room with white linoleum floors and saw a trail of
footprints in the feces that led to two areas in the “mostly empty room.” The room
contained a small piece of furniture, a set of box springs, and a mattress with no
bedframe. There was no bedding on the mattress. There was “another adult diaper in the
middle of the floor” and “some food [o]n the floor that had started to turn color and there
was a plate of uneaten food also on the box spring and mattress.” The victim was lying
on the bed with no covers. He was wearing a “dirty” white t-shirt and vest but “nothing”
from the waist down besides an adult diaper that was “overflowing with feces in [the]
groin area and up the sides.” The victim’s feet were “too swollen to walk on” and were
“covered in feces.” Additionally, the victim’s toenails were so long that they “curled
under his toes.” His fingernails were also long and curled, and there was “dark matter”
under the victim’s fingernails that appeared to be feces.

       When Officer Herbert approached the victim, who was very thin with an unkempt
beard, “he sat up and his face lit up and he had a big smile on his face.” He told the
                                           -2-
officer that he “want[ed] to go to the hospital.” The victim claimed that he had not had
any medication in five months and that no one would “help” him. The victim was “trying
to talk fast” and started to cough a “very deep phlegmy cough.” The victim told Officer
Herbert that he thought that he was “going to freeze to death.” Officer Herbert explained
that he was comfortable in the room only because he was wearing his winter coat. The
victim was unable to stand on his own after trying to do so several times.

       Officer Herbert called the Nashville Fire Department and emergency medical
technicians. The victim was placed on a stretcher, wrapped with blankets, and taken via
ambulance to the Veterans Administration Hospital in Nashville. The victim told
medical personnel that he hurt “all over.” Paramedic Rana Eldridge completed a report
shortly after responding to the call and transporting the victim to the hospital. In the
report, Ms. Eldridge noted the dried feces on the floor. She documented that the victim
was wearing jeans over an adult diaper. According to the report, the victim informed her
that he had not been out of the room for quite some time and had not seen a doctor even
though he had requested to do so. Ms. Eldridge had no independent recollection of the
events, relying solely on her report for her testimony.

        Officer Herbert confirmed the victim’s identity by looking up his driver’s license.
The license listed the victim’s weight as 126 pounds. Officer Herbert visited the victim
at the hospital to take photographs of his condition. The photographs were admitted into
evidence at trial and showed the victim’s long, overgrown fingernails which had dark
matter under them as well as the victim’s swollen feet and long toenails. Officer Herbert
also took a photograph of the victim’s buttocks to highlight a spot just above the rectum
that appeared “scaly and dark” and did not appear to “be healthy skin.”

        When the victim arrived at the hospital for treatment, he was assisted by Nurse
Emily Johnson in the emergency room. At trial, she described the victim as lucid and
oriented but that he appeared “emaciated” and “dirty.” He weighed 102 pounds. She
observed “fecal matter underneath his fingernails” which appeared “long like they had
not been clipped, cleaned, [or] taken care of” in an extended period of time. Ms. Johnson
described the victim’s toenails in a similar manner and observed fecal matter on the
victim’s feet. The victim had fluid in his lungs, a below-normal body temperature, and
slightly elevated blood pressure as well as a stage one bed sore on his buttocks. His
medical diagnoses included malnutrition, dehydration, failure to thrive, E. coli bacterium,
and inhalation E.coli pneumonia. Ms. Johnson explained that E. coli pneumonia can be
contracted by “not being clean” and “inhaling” particles of fecal matter. E. coli
bacterium occurs when the bacteria gets into the bloodstream. She considered both to be
“very dangerous [medical conditions], especially [for] someone [the victim’s] age and in
his state of health to begin with.” The victim was treated for the pneumonia after he left
the emergency room.

                                           -3-
       Ms. Johnson was surprised to learn that the victim had been diagnosed with
dementia and severe short term memory impairment. The victim told Ms. Johnson that
“they” were not taking care of him at home. Specifically, he claimed that he was not
being fed or given medication and that he had been lying on the floor for two days when
the police found him. The victim suffered from dysphagia, or difficulty swallowing, and
required supervision and/or assistance with eating. The victim claimed that his daughter
gave him Ensure, a nutritional drink, at home and that he was not consistently fed actual
food. The victim’s medications had not been filled for several months.

       The defense called Deborah Prieto, a certified nurse assistant who worked with the
victim in November 2013, one year prior to the incident at issue. At that time, the victim
was living with his step-daughter Markesha.1 Ms. Prieto helped the victim bathe and
walk. The victim’s legs were “very weak” at that time and he was “unsteady” on his feet,
but they would try to go for walks. The victim suffered from incontinence in November
2013 and had difficulty changing his adult diaper on his own. At the time, the victim
weighed 106 pounds and subsisted “[b]asically [on] Ensure.”

       The victim’s son, Phillip Sweeney,2 had visited the victim in the summer of 2014
on approximately ten separate occasions. The victim was staying at Defendant’s home.
Phillip described his father as a proud man who was sometimes hesitant to ask for help.
He last saw his father on Thanksgiving in 2014, approximately three weeks prior to this
incident, at the home of his other sister, Patricia. Phillip described his father as “full of
joy,” and witnessed him walk, eat, and drink without assistance. The victim was wearing
adult diapers at the time but was otherwise walking without assistance.

       The victim’s grandson, Jakorean Sweeney, was fifteen years old at the time of
trial. Jakorean lived at Defendant’s apartment when the victim was taken away in an
ambulance. Jakorean remembered that the victim stayed at “Markesha[’s] house” before
coming to stay at Defendant’s apartment. Jakorean helped to care for the victim by
helping him take a bath, change his diaper, and dispose his diapers in the trash. Jakorean
recalled that sometimes the victim would change his own diaper and leave it by the door
for someone to take out to the trash. The victim was “walking” and would “be upstairs in
his room and he w[ould] come downstairs sometimes.” Jakorean claimed that Defendant,
his mother, cooked three meals a day for the victim. According to Jakorean, the victim’s
bedroom was clean when the police came and there was no feces or soiled diapers on the


       1
          Markesha’s last name does not appear in the record. We mean no disrespect by referring to the
victim’s step-daughter by her first name.
       2
         Because multiple witnesses have the same last name, we will refer to any witness with the last
name Sweeney by their first name to attempt to maintain clarity. We mean no disrespect by referring to
the witnesses by their first names.
                                                -4-
floor. In fact, he claimed that the bed “had sheets on it every day.” Jakorean also
testified that the victim could walk but “walked slow” because he had pain in his legs.

        Charline Pitt also lived at the apartment with Defendant and the victim. She
referred to the victim as “daddy.” Ms. Pitt explained that the victim did not live there all
the time and had been there since shortly after Thanksgiving. Ms. Pitt recalled that
everyone in the apartment helped to care for the victim by “washing clothes” and making
sure the victim was eating. Ms. Pitt recalled that the victim was able to get around
independently but that he moved slowly, coming downstairs to go outside and smoke or
sit on the porch or on the couch. The victim had his own cell phone, a television, a few
chairs, and baskets. The victim kept sheets on his bed until they were dirty, and he would
throw them in the hallway for someone to wash.

       The victim died on February 9, 2015. The jury was informed that his death was
unrelated to the proof at trial. At the conclusion of the proof, the jury found Defendant
guilty of one count of gross neglect of an impaired adult and one count of neglect of an
impaired adult. The trial court merged the two counts and sentenced Defendant as a
Range I offender to five years in incarceration for the conviction for gross neglect.

       After the denial of a motion for new trial, Defendant initiated a timely appeal.

                                         Analysis

                       I. Constructive Amendment of the Indictment

       Defendant argues on appeal that the trial court committed plain error by
constructively amending the indictment in its charge to the jury. Specifically, Defendant
argues that the definition of neglect used by the trial court in the jury instructions
incorporated the concept of abuse, which is not an element of the offense, thereby
lowering the burden of proof for the State. The State insists that Defendant is not entitled
to plain error review because the trial court did not breach a clear and unequivocal rule of
law and, in any event, any error was harmless because there was no evidence presented
that supported a conviction for abuse.

       When Defendant was originally indicted, Count One alleged that Defendant had
committed abuse or gross neglect. Counts Two and Three alleged abuse or neglect. Prior
to trial, the trial court granted the State’s motion to amend the indictment by
consolidating Counts Two and Three into a single count that charged Defendant with
neglect of the victim. The trial court also permitted amendment of Count One to charge
gross neglect only, deleting all language referring to physical abuse of the victim. Thus,
Count One in the amended indictment read as follows:

                                            -5-
       [B]etween the 1st day of June, 2014, and the 11th day of December, 2014, in
       Davidson County, Tennessee and before the finding of this indictment,
       [Defendant] knowingly, other than by accidental means, grossly neglect[ed]
       John Sweeney an impaired adult and the neglect resulted in serious mental
       or physical harm in violation of Tennessee Code Annotated § 71-6-119, and
       against the peace and dignity of the State of Tennessee.

Count Two of the amended indictment read:

       [B]etween the 1st day of June, 2014, and the 11th day of December, 2014, in
       Davidson County, Tennessee and before the finding of this indictment,
       [Defendant] knowingly, other than by accidental means, did neglect, John
       Sweeney, an adult as defined in Tennessee Code Annotated section § 71-6-
       102, in violation of Tennessee Code Annotated § 71-6-117, and against the
       peace and dignity of the State of Tennessee.

       During trial, after the close of the State’s proof but prior to the conclusion of the
defense proof, counsel for Defendant asked the trial court to force the State to elect “what
actual conduct constitutes neglect as well as what constitutes the serious physical or
mental harm.” The trial court determined that because the State was proceeding on the
theory of gross neglect only, it was not necessary to elect facts upon which the charge
was based. This ultimately led to a discussion of the jury instructions. Specifically,
during the discussion, the trial court read the definition of neglect as follows:

              Neglect means the infliction of physical pain, injury or mental
       anguish or the deprivation of services by a caretaker that were necessary to
       maintain the health and welfare of the adult or a situation in which the adult
       was unable to provide or obtain services that were necessary to maintain
       that person’s health or welfare, . . . .

The trial court continued:

              [F]or you to find the defendant guilty of this offense, and we’re
       talking neglect or gross neglect, it is not necessary that the alleged victim
       suffered bodily injury, which involves a substantial risk of death, protracted
       unconsciousness, extreme physical pain, protracted or obvious
       disfigurement, protracted loss or substantial impairment of a function of a
       bodily member, organ or mental faculty.

               That is the definition of serious bodily injury, so what this is saying
       is that you do not have to prove that, but it does go ahead in the pattern and
       say the law merely requires that the alleged victim suffer serious mental or
                                            -6-
      physical harm and then I look in the pattern instruction and there is really
      no definition for those two things [serious mental or physical harm], so my
      law clerk, me, and my secretary was looking at this and we have come up
      with a definition.

             I want to see if you like or don’t, probably you won’t, or whether
      you have a suggestion, and the definition that we thought that makes sense
      in this is serious mental harm, means any serious impairment or the
      function of a person’s mind. Seriously physical harm means any serious
      physical pain, illness or impairment of the body.

       Counsel for the State was agreeable to the definitions of serious mental or physical
harm proposed by the trial court, and counsel for Defendant said that the definition was
“fine.” There was no further discussion with regard to the definition of neglect. At the
conclusion of the proof, the trial court instructed the jury that neglect was:

      [T]he infliction of physical pain, injury, or mental anguish, or the
      deprivation of services by a caretaker that were necessary to maintain the
      health and welfare of the adult or a situation in which the adult was unable
      to provide or obtain the services that were necessary to maintain the
      person’s health or welfare.3

       Now, on appeal, Defendant complains that the trial court’s definition of neglect
includes and incorporates the definition and concept of abuse. Defendant points
specifically to the following language in the definition of neglect, which he alleges
actually defines abuse, “the infliction of physical pain, injury, or mental anguish.”
Defendant argues that “[t]he instruction given broadens the scope of the indictment and
lowers the State’s burden of proof . . . [and] constitutes a constructive amendment to the
indictment.”

       We first note that Defendant did not raise this issue in her motion for new trial.
Accordingly, we can review this issue only for plain error. See Tenn. R. App. P. 3(e). To
determine whether a trial error rises to the level of “plain error,” the following five
factors must be present:

      (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 waived] the issue for tactical reasons; and (e)
      consideration of the error [is] “necessary to do substantial justice.”

      3
          This instruction mirrors the language of Tennessee Code Annotated section 71-6-102(1)(A).
                                                    -7-
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)). All five factors must be established by the record
before this Court will recognize the existence of plain error, and complete consideration
of all the factors is not necessary when it is clear from the record that at least one of the
factors cannot be established. Id. at 283.

       The crime of which Defendant was convicted makes it “an offense to knowingly,
other than by accidental means, physically abuse or grossly neglect an impaired adult if
the abuse or neglect results in serious mental or physical harm.” T.C.A. § 71-6-119. The
State chose, prior to trial, to proceed on the theory of gross neglect rather than physical
abuse. The definitions in the statute and the pattern jury instruction for the offense define
both abuse and neglect in the same instruction. See T.C.A. § 71-6-102(1)(A); 7 Tenn.
Prac. Pattern Jury Instr. T.P.I.-Crim. 29.13. The trial court herein took out the word
“abuse,” substituting the word “neglect” in its place. Defendant insists that the trial court
improperly included the first portion of the jury instruction (i.e. “the infliction of physical
pain, injury, or mental anguish”) that clearly pertains only to abuse, pointing to the
comments after the pattern jury instruction to support his argument. The comments after
the pattern jury instruction suggest that:

       [t]he trial judge, after reading the definition of ‘abuse or neglect’ in T.C.A.
       § 71-6-102(1), and depending on the facts proved at trial, may wish to
       define ‘abuse’ separately as ‘the infliction of physical pain, injury, or
       mental anguish’ and ‘neglect’ separately as ‘the deprivation of services by a
       caretaker that are necessary to maintain the health and welfare of an adult,
       or a situation in which an adult is unable to provide or obtain the services
       that are necessary to maintain that person’s health or welfare.’ Although
       those definitions would follow a common sense reading of the statute
       together with the common ordinary usage of the words ‘abuse’ and
       ‘neglect,’ the legislature failed to make that distinction.

7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 29.13. While we acknowledge the existence
of the comments to the pattern jury instructions, we recognize that they are not the law.
As our supreme court has previously noted, pattern jury instructions are only suggestions
for a trial court because they are “not officially approved by [the Tennessee Supreme
Court] or by the General Assembly and should be used only after careful analysis.” State
v. Hodges, 944 S.W.2d 346, 354 (Tenn. 1997). Therefore, the trial court did not breach a
clear and unequivocal rule of law. Moreover, the pattern jury instruction given by the
trial court herein mirrors the definition of “abuse or neglect” found in Tennessee Code
Annotated section 71-6-102(1)(A). Defendant is not entitled to plain error relief.

                                    II. Evidentiary Issues
                                             -8-
                      A. Admission of Driver’s License Information

       Defendant contends that the trial court committed error by allowing Officer
Herbert to testify about the information on Defendant’s driver’s license, complaining that
it was hearsay evidence. The State concedes that the admission of the evidence was error
but argues that any error was harmless. We agree with the State.

       Prior to trial, Defendant filed a motion in limine to exclude “[a]ny statement from
[the victim’s] driver’s license, including his height, weight, or address.” There does not
appear to have been a pretrial ruling on the motion. At trial, Officer Herbert was asked if
he had been able to identify the victim. Officer Herbert testified that he searched for the
victim’s driver’s license record. Counsel for Defendant objected. The trial court
overruled the objection and permitted the officer to testify that Defendant’s driver’s
license listed his weight as 126 pounds and that the victim weighed 102 pounds at the
hospital.

       As a general rule, hearsay is inadmissible at trial unless otherwise provided by the
rules or by law. Tenn. R. Evid. 802. Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Tenn. R. Evid. 801(c). A trial court’s factual finding and credibility
determination with regard to a hearsay statement is binding on this Court unless the
evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.
2015). Whether a statement constitutes hearsay or satisfies a hearsay exception is a
question of law which we review de novo. Id.

        Ordinarily, a driver’s license or report regarding driver’s license history would be
admissible as a public record under Tennessee Rule of Evidence 803(8). However, in
this case, the driver’s license itself was not tendered into evidence. Officer Herbert
testified as to what he observed on the victim’s driver’s license to establish that the
victim was well under his normal weight of 126 pounds at the time he was taken to the
hospital.
        We must determine whether the error was harmless. Non-structural constitutional
errors do not require automatic reversal but are subject to a harmless error analysis. State
v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002); see also State v. Cauthern, 778 S.W.2d 39, 46
(Tenn. 1989) (citing Chapman v. California, 386 U.S. 18 (1967)). Under the non-
structural constitutional harmless error analysis, the defendant bears the burden of
demonstrating “that the error ‘more probably than not affected the judgment or would
result in prejudice to the judicial process.’” State v. Rodriguez, 254 S.W.3d 361, 372
(Tenn. 2008) (quoting Tenn. R. App. P. 36(b)). The stronger the evidence of the
defendant’s guilt, the heavier the burden is on the defendant to prove that a non-
constitutional error was not harmless. Id. However, harmless error analysis does depend
                                            -9-
entirely on whether there was sufficient evidence to support a defendant’s conviction. Id.
Instead, “the crucial consideration is what impact the error may reasonably be taken to
have had on the jury’s decision-making.” Id. The proper inquiry is whether the “error
more probably than not had a substantial and injurious impact on the jury’s decision-
making.” Id. (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

        At trial, in addition to the improper testimony from Officer Herbert, the jury heard
about the victim’s weight from several other witnesses. Ms. Prieto testified that the
victim weighed 106 pounds while in her care in November 2013, more than one year
prior to the time he was found in Defendant’s apartment. She described the victim as
“emaciated.” There was testimony that the victim lived at several locations between
November 2013 and December 2014. Testimony from the nurse at the hospital showed
that the victim was 102 pounds when he was brought in to the hospital, only four pounds
less than what he weighed in November 2013. He was diagnosed as being malnourished.
The jury could reasonably assume without the testimony from Officer Herbert that the
victim was, at one time, heavier and healthier. Thus, any error in the admission of the
hearsay testimony about the victim’s stated weight on his driver’s license is harmless.

          B. Admission of Officer Herbert’s Opinion on the Victim’s Condition

       Defendant complains that the trial court improperly permitted Officer Herbert to
give testimony that amounted to a medical opinion and conclusion regarding the victim’s
cough and the condition of the skin on his buttocks. The State disagrees, countering that
the statements were permissible as lay opinion testimony under Tennessee Rule of
Evidence 701.

        Prior to trial, Defendant filed a motion in limine seeking to prevent non-medical
witnesses from testifying about subjects that required medical expertise. The trial court
granted the motion, commenting that “the police officer would [not] be testifying as an
expert regarding medical diagnosis or whatever else it would be so he can testif[y] as a
witness as to what he did in his investigation, but not get into medical evidence. . . .” At
trial, during Officer Herbert’s testimony, the trial court permitted the officer to testify as
to his opinion on the victim’s medical condition. Specifically, Officer Herbert testified
that victim’s cough was “so phlegmy” and was “a very rattily cough” that sounded “very
serious.” Counsel for Defendant objected to the testimony, but the trial court overruled
the objection. Then, the officer testified that he was “not a medical professional” but that
the skin above the victim’s rectum was “scaly and dark” and did not appear “to be
healthy skin.” Again, counsel for Defendant objected, and the trial court overruled the
objection.

      To begin our analysis, we note that the admissibility of evidence is within the
sound discretion of the trial court, and this Court will not interfere with the exercise of
                                            - 10 -
that discretion in the absence of a clear showing of abuse appearing on the face of the
record. See State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014); State v. DuBose, 953 S.W.2d
649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993). When the
admission or exclusion of opinion evidence is challenged on appeal, it is reviewable only
for abuse of discretion. See, e.g., State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App.
1997). An abuse of discretion occurs when the trial court (1) applies an incorrect legal
standard; (2) reaches an illogical or unreasonable decision; or (3) bases its decision on a
clearly erroneous assessment of the evidence. State v. Mangrum, 403 S.W.3d 152, 166
(Tenn. 2013) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

     Rule 701 of the Tennessee Rules of Evidence, entitled “Opinion Testimony by
Lay Witnesses” provides as follows:

      (a) Generally. If a witness is not testifying as an expert, the witness’s
      testimony in the form of opinions or inferences is limited to those opinions
      or inferences which are

      (1) rationally based on the perception of the witness and

      (2) helpful to a clear understanding of the witness’s testimony or the
      determination of a fact in issue.

The Tennessee rule is nearly identical to its federal counterpart. The Tennessee rule, as
amended in 1996, reflects the trend in favor of allowing lay opinion testimony under
certain circumstances:

      Although American law traditionally has treated lay opinion testimony as
      an unpopular relative who keeps appearing at family reunions, there is now
      a recognition that this relative not only should be invited to the gathering
      but may be a contributing part of the family. . . . The reason for this [trend
      in favor of allowing the admission of lay opinion testimony] is simple:
      sometimes lay opinion testimony is both necessary and valuable. The lay
      witness may not be able to provide helpful proof without giving an opinion.
      For example, how could a witness testify about age, identity, speed, or
      height without delving into the realm of opinion? What is helpful is the
      witness’s total impression, not the constituent elements.

Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence §
7.01[3] (6th ed. 2011). Thus, a lay person may, as appropriate, testify as to his or her
personal observation of a fact or event in the form of an opinion commonly understood
by most people. See State v. Wingard, 891 S.W.2d 628, 636 (Tenn. Crim. App. 1994).

                                           - 11 -
       A witness’s lay opinion testimony is admissible only when the jury could not
readily draw its own conclusions on the issue without the witness’s lay opinion or where
the witness cannot effectively testify without stating the inference or opinion. State v.
Schiefelbein, 230 S.W.3d 88, 130 (Tenn. Crim. App. 2007). The lay opinion testimony
should be based on admissible facts which are in evidence. State v. Boggs, 932 S.W.2d
467, 474 (Tenn. Crim. App. 1996). While expert opinion is based on a process of
reasoning which can be mastered only by specialists in the field, lay opinion should be
based on a process of reasoning drawn from everyday life. State v. Brown, 836 S.W.2d
530, 549 (Tenn. 1992). A lay opinion should be within the range of knowledge or
understanding of ordinary laymen. Boggs, 932 S.W.2d at 474. In other words, opinions
permissible under Rule 701 must be based on the witness’s own observations, should
require no expertise, and ought to be within the range of common experience. State v.
Samuel, 243 S.W.3d 592, 603 (Tenn. Crim. App. 2007).

       Common examples of lay witness testimony include: (1) testimony regarding the
speed at which a car is traveling, Kim v. Boucher, 55 S.W.3d 551, 555-56 (Tenn. Ct. App.
2001); (2) testimony about whether a child was afraid, Schiefelbein, 230 S.W.3d at 130;
(3) testimony about whether a person was physically impaired, Boggs, 932 S.W.2d at
474; (4) testimony about whether a person was intoxicated, see Kirksey v. Overton Pub,
Inc., 804 S.W.2d 68, 75 (Tenn. Ct. App. 1990); (5) testimony about whether an injury
looked like a cigarette burn, Brown, 836 S.W.2d at 550; (6) testimony that an injury
caused by digging a fingernail into the victim’s skin was recent, Samuel, 243 S.W.3d at
603; and (7) testimony that a door looked like it had been pried open and that a footprint
was similar to the defendant’s, State v. Anthony Duran Hines, No. M2007-00493-CCA-
R3-CD, 2008 WL 2026113, at *1-2 (Tenn. Crim. App. May 12, 2008), perm. app. denied
(Tenn. Oct. 6, 2008). However, lay opinion testimony may be improper where the
witness giving the lay opinion effectively usurps the function of the jury. United States v.
Grinage, 390 F.3d 746, 750-51 (2d Cir. 2004) (holding that testimony interpreting both
phone calls that the jury heard and calls the jury did not hear and making inferences
highlighting similarities between the defendant’s calls and others made in furtherance of
a conspiracy was not permissible lay opinion testimony under Federal Rule of Evidence
701). Additionally, we note that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” Tenn. R. Evid. 704.

       In this case, Defense counsel sought to exclude the testimony of Officer Herbert
about the victim’s condition. Applying Rule 701, we can easily determine that the
officer’s proposed testimony certainly would be rationally based on his own perception of
the victim. Officer Herbert was present during the search of the apartment where the
victim was located and personally observed the conditions in which the victim was living.
He saw and talked to the victim both prior to and after the victim’s transportation to the
hospital, hearing his cough in the process. Officer Herbert also observed the victim’s
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buttocks and observed the skin as scaly and dark. Officer Herbert qualified his opinion
by noting that he was not a medical expert. The testimony provided by Officer Herbert in
the form of his opinion testimony was certainly helpful to a clear understanding of the
ultimate issue: whether the victim was grossly neglected by Defendant. While actual
medical personnel testified as to the victim’s condition when he was received at the
hospital, Officer Herbert offered the only firsthand account of the victim’s condition at
the apartment. The testimony of Officer Herbert was “helpful to a clear understanding of
the witness’s testimony or the determination of a fact in issue.” Schiefelbein, 230 S.W.3d
at 130. Consequently, the trial court did not abuse its discretion in admitting the
testimony. Defendant is not entitled to relief.

                  C. Admission of Photograph of the Victim’s Buttocks

       Defendant complains that the trial court improperly allowed the State to introduce
a photograph of the victim’s buttocks at trial. Specifically, Defendant argued in a motion
in limine that the photograph was not relevant because it did not depict an injury or harm,
was graphic, and had the potential to inflame the jury. The trial court permitted the
introduction of the photograph. Defendant insists that the admission of the photograph
was error. The State disagrees.

       To be admissible, evidence must satisfy the threshold determination of relevancy
mandated by Rule 401 of the Tennessee Rules of Evidence. See, e.g., State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978). Rule 401 defines “relevant evidence” as being “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. However, relevant “evidence may be excluded if its
probative value is substantially outweighed by . . . the danger of unfair prejudice.” Tenn.
R. Evid. 403; see also Banks, 564 S.W.2d at 951.

        Graphic, gruesome, or even horrifying photographs of crime victims may be
admitted into evidence if they are relevant to some issue at trial and their probative value
is not outweighed by their prejudicial effect. Banks, 564 S.W.2d at 949-51. On the other
hand, “if they are not relevant to prove some part of the prosecution’s case, they may not
be admitted solely to inflame the jury and prejudice them against the defendant.” Id. at
951 (citing Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)). The decision as to
whether such photographs should be admitted is entrusted to the trial court, and that
decision will not be reversed on appeal absent a showing of abuse of discretion. Id. at
949; State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993).

       The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.”
Banks, 564 S.W.2d at 951 (quoting Fed. R. Evid. 403, Advisory Comm. Cmts). In
                                           - 13 -
Banks, the Supreme Court gave the trial courts guidance for determining the admissibility
of relevant photographic evidence and determined that a trial court should consider the
following: (1) the accuracy and clarity of the picture and its value as evidence; (2)
whether the picture depicts the body as it was found; (3) the adequacy of testimonial
evidence in relating the facts to the jury; and (4) the need for the evidence to establish a
prima facie case of guilt or to rebut the defendant’s contentions. Id. at 951. “Moreover,
the admissibility of photographic evidence does not depend upon the defendant’s offer to
stipulate to the facts depicted therein.” State v. Carruthers, 35 S.W.3d 516, 577 (Tenn.
2000).

       Although the photograph in question is a close-up photograph of the victim’s
rectum and buttocks, and most likely uncomfortable for some people to view, we
conclude that the trial court did not abuse its discretion in admitting the photograph. It
was not overly prejudicial for the jury to see the extent of the victim’s stage one bed sore
and to hear an explanation of the bed sore from the nurse who examined the victim. The
photograph was also probative to the determination of whether the victim was grossly
neglected. Moreover, the photograph was merely one piece in the proof that Defendant
committed the offenses. Therefore, we cannot conclude that the trial court abused its
discretion by the admission of the photograph.

                              III. Sufficiency of the Evidence

        Lastly, Defendant argues that the evidence was insufficient to support the
convictions. Specifically, Defendant argues that the State failed to establish that her
actions resulted in serious mental or physical harm to her father. Additionally, Defendant
insists that the State failed to establish knowing conduct on her part. The State contends
that the evidence was sufficient to support the convictions.

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
                                           - 14 -
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett,
788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘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)).

       Defendant was convicted of gross neglect of an impaired adult in violation of
Tennessee Code Annotated section 71-6-119. To sustain this conviction, the State must
have proven (1) that the defendant knowingly, other than by accidental means, grossly
neglected an impaired adult; and (2) that the gross neglect resulted in serious mental or
physical harm. T.C.A. § 71-6-119. Additionally, the statute makes it clear that it is “not
necessary for the [S]tate to prove the adult sustained serious bodily injury.” Id. As stated
above, neglect is defined in Tennessee Code Annotated section 71-6-102 as:

       the infliction of physical pain, injury, or mental anguish, or the deprivation
       of services by a caretaker that were necessary to maintain the health and
       welfare of the adult or a situation in which the adult was unable to provide
       or obtain the services that were necessary to maintain the person’s health or
       welfare.

       Viewing the evidence in a light most favorable to the State, the victim was staying
at Defendant’s home at the time that he was discovered by police. He was in a sparsely
furnished, dirty, cold bedroom surrounded by soiled adult diapers, feces, and food that
had been left out for an extended period of time. The victim was unable to walk and had
extremely long fingernails and toenails which were caked with feces. Upon seeing
Officer Herbert, the victim immediately told the officer that he needed to go the hospital
because he was not getting his medicine. When the victim was taken to the hospital, he
was found to be malnourished and was diagnosed with E. coli pneumonia and E. coli
bacterium, both “very dangerous” for someone in the victim’s condition.

       Defendant complains on appeal that the testimony of Ms. Johnson as to the
seriousness of the victim’s condition was inadmissible because she was not qualified to
render such an opinion. However, Defendant failed to object to this testimony at trial. In
fact, Ms. Johnson testified as to her medical experience and Defendant did not challenge
her testimony on cross-examination. Any attempt to do so now is waived. See Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”).

                                           - 15 -
       Defendant also complains that the State failed to establish a causal relationship
between the victim’s diagnoses of E. coli bacterium and E. coli pneumonia with the fecal
matter under the victim’s fingernails. To the contrary, the evidence at trial showed that
the victim was found in filthy conditions with dried feces both on the floor of the
bedroom and under the victim’s fingernails and toenails. Ms. Johnson testified that a
person can inhale particles if they are exposed to them for an extended period of time.

        Defendant also claims the State failed to prove that she acted knowingly. The
proof showed that the victim had resided at Defendant’s house in deplorable conditions
for at least several days before he was found by the police and was suffering from two E.
coli infections at the time he was taken to the hospital. There were several people living
in the house that testified the victim was staying there and knew the victim needed
assistance with daily activities. When the victim was taken to the hospital, he told
medical personnel that he hurt “all over.” There was proof from which the jury could
determine Defendant was, by taking the victim under her roof, caring for and supervising
the victim while knowing his condition and limitations and still failed to take proper
action to care for his basic needs. We conclude that there was sufficient evidence from
which a rational juror could determine that Defendant knowingly neglected the victim.
The evidence was sufficient to support the convictions. Defendant is not entitled to
relief.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                    ____________________________________
                                   TIMOTHY L. EASTER, JUDGE




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