        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 5, 2013 Session

                  STATE OF TENNESSEE v. SEAN M. LEIFER

                   Appeal from the Circuit Court for Fayette County
                       No. 6567     J. Weber McCraw, Judge


                 No. W2012-00320-CCA-R3-CD - Filed May 30, 2013


Appellant, Sean M. Leifer, was indicted for first degree felony murder and aggravated child
abuse. A jury convicted him of reckless homicide and aggravated child abuse, and the trial
court imposed concurrent sentences of four years and sixteen years, respectively. Appellant
now challenges the sufficiency of the convicting evidence and the trial court’s rulings with
regard to the State’s expert witness. Following our review, we affirm the judgments of the
trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Sean M. Leifer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Walt Freeland and Lisa Borden, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

      This case involves the death of a nine-month-old child in December 2009. Appellant
was indicted in November 2010, and the case was tried in August 2011.

        At trial, Barbara Fergie, an emergency medical technician with the Oakland
Ambulance Service, testified that she and her partner, paramedic Lori Tandy, responded to
a call to 490 Mebane Street in Oakland, Tennessee, on the morning of December 25, 2009.
After they arrived, Ms. Tandy went into to the home first and emerged carrying the victim,
a nine-month-old male child. Ms. Fergie and Ms. Tandy attempted to render assistance to
the child in the ambulance; however, Ms. Fergie stated that the victim was “cool to the
touch” and was, in her opinion, already deceased.

       On cross-examination, Ms. Fergie acknowledged that responders from the Oakland
Fire Department were either on the scene already or arrived at the same time. The dispatcher
had informed her that the family was attempting CPR on the victim when the call was placed.
Ms. Fergie continued CPR efforts by “bagging” the victim, and Ms. Tandy placed electrodes
on the victim’s chest. Soon thereafter, they left with the victim to meet a helicopter (“the
Wing”) that was going to fly the victim to LeBonheur Children’s Hospital in Memphis. They
were still performing CPR when they arrived at the landing site. Crew members from the
Wing helped them open the victim’s airway and establish an IV before placing him on a
stretcher, wheeling him to the helicopter, and preparing for flight.

       Jamie Kennedy, mother of the victim and wife of appellant, testified that she and
appellant lived with appellant’s father in December 2009. Their other two children also
lived there, as well as appellant’s step-mother and thirteen-year-old half-brother.
Approximately one week before Christmas, Ms. Kennedy moved out of her in-laws’ home
and into the home of her sister and brother-in-law. She did not take any of her children with
her when she moved. Ms. Kennedy stated that she went to the Oakland Police Department
in an effort to gain custody of her children before Christmas but was unsuccessful.

        Ms. Kennedy testified that on the morning of the victim’s death, she received a
telephone call from an aunt, who advised that an ambulance was at her father-in-law’s house.
Ms. Kennedy called the house, and someone informed her that she would have to go to
LeBonheur Children’s Hospital to identify the victim’s body. She arrived at LeBonheur
about 11:00 a.m. According to Ms. Kennedy, appellant placed the guilt for the victim’s death
on their two-year-old child, appellant’s father, and appellant’s thirteen-year-old brother. Ms.
Kennedy noted that prior to the victim’s death, “He was above a normal nine[-]month old .
. . was standing up and starting to walk.”

       On cross-examination, Ms. Kennedy testified that she could not remember whether
she told police officers that she had taken prescription sleeping pills on Christmas Eve. She
acknowledged that the victim was born on March 4, 2009, by emergency Caesarean section
because he had a prolapsed cord, which impaired his breathing. He remained in the hospital
about a week after birth for jaundice. She admitted that in March 2009, her in-laws had
custody of the two older children and that she lived in her in-laws’ home while appellant was
away at basic training. Ms. Kennedy recounted the victim’s acid reflux problems, as well as
an episode in mid-April that resulted in an ambulance trip to LeBonheur Children’s Hospital.
She said that changing the victim’s medication in July from Zantac to Nexium seemed to help
his acid reflux. Ms. Kennedy recalled that in December 2009, the victim was being treated

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for congestion or a cold and agreed that he was still having problems before she left the
home.

        Kenneth Michael Long with the Oakland Police Department testified that he was
dispatched to the Leifer residence at approximately 10:22 a.m. on Christmas Day. Upon
arriving, he was directed to a bedroom where he observed an older man administering CPR
to an infant while a younger man stood next to the infant. Officer Long recalled appellant’s
saying that he awakened about 10:20 that morning and observed the child sleeping face-down
in his crib. Appellant indicated to Officer Long that the last time appellant saw the victim
responsive was approximately 3:30 a.m., when appellant gave him a bottle and put him back
to sleep with no problems.

       Officer Long, on cross-examination, testified that he was the first responder on the
scene. He stated that paramedics arrived within minutes and removed the victim from the
grandfather and took him to the ambulance. He recalled that the victim’s grandmother was
also present.

        Angela Leifer, appellant’s stepmother, testified that in December 2009, she and her
husband, their adolescent son, appellant, appellant’s wife, and the three children of appellant
and his wife lived in their three-bedroom, 1400-square-foot home. Appellant’s wife, Jamie,
left their home around December 20, 2009.

        Ms. Leifer stated that on Christmas Eve around 6:00 p.m., the entire family, including
her daughter who was visiting overnight, traveled to a friend’s house about five minutes
away from her home. During the evening, the victim leaned forward on a sofa on which they
were sitting and fell face-down on to the carpeted floor. She recalled that the victim cried
for a minute but did not appear to be seriously injured. Ms. Leifer picked the victim up, held
him, rocked him, “played with him a minute[,] and . . . laid him down.” The victim never
lost consciousness, and she did not observe anything out of the ordinary in the fall. Ms.
Leifer testified that they all left her friend’s house about an hour later, which was “around
10:30.” After arriving at home, appellant carried the children inside. She stayed up and
helped place the gifts on the fireplace for the next morning. Appellant got the children ready
and put them to bed. Ms. Leifer recalled that she was the first person to go to bed, and she
did not know who went to bed after her. She stated that her bedroom was directly across the
hall from appellant’s bedroom.

        Ms. Leifer stated that appellant slept in a daybed, the one-year-old child slept in a crib,
the two-year-old child slept in a toddler bed, and the victim slept in a playpen. Ms. Leifer
testified that in the playpen, there were “a couple of blankets” but acknowledged that she did



                                                -3-
not look in the playpen that night. She also acknowledged there were adult pillows in the
room.

        Ms. Leifer remembered that on Christmas morning, she first learned that something
was wrong with the victim when her thirteen-year-old son entered her bedroom to announce
that the children were awake but returned a few minutes later to tell her that the victim was
not breathing. She recalled seeing her husband perform CPR on the victim and stated that
although he did not know CPR, she saw him “trying to do something.” Ms. Leifer did not
see or hear any response from the victim. Her thirteen-year-old son made the 9-1-1 call
because she was trying to stay with the other two children. Ms. Leifer estimated that the
ambulance arrived about five to ten minutes after the call. She recalled that Officer Long
was one of the first responders and that someone carried the victim to the ambulance.

        On cross-examination, Ms. Leifer testified that during the Christmas Eve get-together
at her friend’s house, appellant was never threatening or upset with the children. Appellant
participated in and was engaged in getting the children’s presents. She recalled that appellant
seemed to be enjoying himself with the children. Ms. Leifer admitted the victim had a runny
nose, was “a little fussy . . . ,” and had been sick for “[a] while.” She stated that appellant
had gone Christmas shopping for his children and had presents for all of them. Ms. Leifer
confirmed that when they arrived at home, appellant brought the children inside, “[c]arried
them to the bedroom[,] [and] put them to bed.” According to Ms. Leifer, “[Appellant] was
the primary person to do everything for the children.”

        Mrs. Leifer stated that she did not hear the victim crying during the night but admitted
that they slept with air filters in every room, which created noise. However, she would have
heard yelling or loud voices. She stated that she had previously heard the victim cry at night
and said, “I’ve heard him a couple of times, but nothing – not long . . . .” Ms. Leifer testified
that she was awakened “[a]round ten” Christmas morning by her son’s announcing that the
children were awake. At that point, nothing had happened that would have led her to believe
she was going to find her grandson deceased. She stated that when she observed her husband
performing CPR on the victim, she glanced briefly at the victim “over the side of the bed.”
She explained that the two little ones were “running around,” and she “was just trying to keep
them away and calm.”

       On redirect examination, Ms. Leifer testified that on Christmas Eve, she did not
consider appellant to be a danger or a threat to his children. However, she acknowledged that
when police informed her that they were treating the victim’s death as a murder and that
appellant was a suspect, she ran from the house “screaming, ‘Get him out – get him out – get
him out.’” Ms. Leifer acknowledged a previous incident wherein appellant had placed a
pillow over the victim’s face to quiet him while he was in bed, and appellant admitted that

                                               -4-
he had done so. Ms. Leifer stated, “I found out about that incident two weeks after it had
already happened[,] and the mother told us it was no big deal[,] and it wasn’t.” She did not
personally hear appellant admit to the incident or state that he would not do it again, but she
clarified, “It was between him and his father, a conversation they had.”

       During recross-examination, Ms. Leifer acknowledged that she had never witnessed
appellant do anything to injure or harm his children, but after the victim’s death, appellant
was asked to leave the home. Appellant was not asked to leave the home after the “pillow
incident” because “[the victim’s mother] told us it was nothing.” Because of Ms. Kennedy’s
statement, Ms. Leifer did not feel there was any threat to the children and took no action to
limit appellant’s access to the children.

        Investigator David Webb of the Fayette County Sheriff’s Office testified that on
December 26, 2009, appellant and his father, Miles Leifer, came to the Oakland Police
Department for a noncustodial interview. According to Investigator Webb, appellant stated
that after he put the children to bed, he began surfing the internet and “checking out” dating
and social media sites. Appellant recounted to Investigator Webb that on Christmas morning,
he was on the computer from around 1:00 a.m. until approximately 3:30 a.m., when the
victim awakened and began to cry. Appellant left the computer and went into the bedroom.
The other two children were in their beds. The victim was hungry, but appellant stated that
it was normal for the victim to wake up for a bottle during the night. Appellant told
Investigator Webb that he went into the bedroom and fed the victim, put the victim back to
bed, laid him on his left side with his back against the side of the bed, and then went to sleep
himself.

       In addition to conducting interviews, Investigator Webb seized appellant’s computer
and sent it to the Tennessee Bureau of Investigation (“TBI”) to be analyzed. He stated that
he also obtained the bedding from the victim’s bed. Investigator Webb took photographs of
the exterior of the house “to make sure that there was no forced entry to a window or
anything such as that, and there was not.” In waiting eleven months to present this case to
the Grand Jury, Investigator Webb testified, “We wanted to make sure that we did everything
that we needed to do.”

       Investigator Webb, on cross-examination, testified that on December 26th, he obtained
evidence from an investigator with the Shelby County Medical Examiner’s office that the
victim’s death was a homicide resulting from asphyxiation.

       Oakland Police Department Sergeant Cliff Atkins testified that he collected blankets,
pillows, and stuffed animals from the victim’s room to be sent to the TBI to test for the
presence of any blood, vomit, or anything of that nature. No blood was present on these

                                              -5-
items. He further testified that Miles Leifer gave consent for the computer to be collected,
and he personally delivered it to the TBI for forensic analysis. Sergeant Atkins was with
Investigator Webb during all of the interviews. He recalled that they were unable to further
interview appellant despite several requests through the family attorney.

       On cross-examination, Sergeant Atkins acknowledged requesting three judicial
subpoenas for the victim’s medical records: one for the Fayette County Health Department;
one for Dr. Hamilton in Somerville; and one for LeBonheur Children’s Medical Center. He
received all of the medical records and offered to give Dr. Karen Chancellor a copy;
however, during a meeting with her, she advised that she had her own copies of all the
medical records.

        The State called appellant’s father, Miles Leifer, as its next witness. Mr. Leifer
testified that his entire household attended a Christmas Eve party at the Gilberts’ home,
which was a couple of miles from his home. He recalled either standing or kneeling next to
the couch when the victim leaned forward and fell head-first on to the carpeted floor. He
noted that the victim screamed for a few minutes and stated, “I didn’t see any injuries but[,]
he was very, very upset.” Mr. Leifer surmised that the victim’s fall occurred around 9:00 or
9:30 p.m. The victim never appeared to lose consciousness, “but he did eventually go to
sleep.” He testified they all left the Gilberts’ house between 10:00 and 10:30 p.m., and it was
around 1:30 a.m. on Christmas Day when he went to bed. Mr. Leifer recalled that appellant
put the children to bed that night. Mr. Leifer retired to bed after Ms. Leifer, leaving his
thirteen-year-old son, his daughter, and appellant awake. To the best of his knowledge, there
was nothing wrong with the victim when he went to bed.

        Mr. Leifer further testified he was in his kitchen about 10:00 a.m. on Christmas
morning, preparing to make a pot of coffee, when he heard appellant “yelling that [the
victim] wasn’t breathing.” He stated, “My response was [that] I ran from the kitchen to the
bedroom. [The victim] was laying [sic] on [appellant’s] bed, on his back, with his [onesie]
three-quarters of the way open. He was non[-]responsive, [and] he wasn’t breathing. I
couldn’t get a pulse. I immediately started CPR.” In retrospect, Mr. Leifer never felt that
the victim was in danger of accidental suffocation from his playpen bedding or from the older
children harming him.

       On cross-examination, Mr. Leifer acknowledged having been awakened on previous
nights by one of the babies’ crying but denied hearing any crying or being awakened by
anything this night. He explained that he was CPR-trained when he was a reserve officer
with the Oakland Police Department. When he heard appellant’s calling for him and
observed appellant with the victim, he stated, “I first checked for vitals. I touched him . . .
he was warm, and I started CPR.”

                                              -6-
       Special Agent James R. Garnet, a computer forensics analyzer with the TBI Technical
Services Unit, was accepted by the trial court as an expert in the field of computer analysis.
The Leifer computer was brought to the TBI by the Oakland Police Department to be
analyzed for internet activity from December 23, 2009, to January 1, 2010. Special Agent
Garnet narrowed his analysis to the time frame beginning at midnight, or 12:00 a.m., on
December 25th and testified, “And here appears to be Facebook activity during that time
frame, some Yahoo Mail activity, eHarmony, singlesnet.com, and at approximately 3:31 a.m.
on December 25th, that is where the web activity stops.”

       On cross-examination concerning the time on the computer clock, Special Agent
Garnet explained one of his initial steps in analyzing a computer is verifying the time setting
of the computer with his local time, which he did. He found the clock to be exact.

       Dr. Karen Elizabeth Chancellor, Chief Medical Examiner for Shelby County, was
accepted by the trial court as an expert in forensic pathology and neuropathology. She
described her findings of petechial hemorrhages on the right and left sides of the victim’s
face as well as two hemorrhages in the left eye, which result from breakage of tiny blood
vessels, or capillaries. Dr. Chancellor noted that she found “sparing,” or the absence of
injury on a particular part of the body, of petechial hemorrhages on the nose and face area
of the victim, which “indicated to [her] that there was the possibility of asphyxiation as a
cause of death.” Dr. Chancellor agreed that attempted life-saving medical intervention could
sometimes cause injuries to a victim but that in her opinion, the petechial hemorrhaging and
the victim’s resulting death were not caused by the CPR.

       As to Sudden Infant Death Syndrome (“SIDS”), Dr. Chancellor stated,

       Today we, as pathologists, are not likely to use the term SIDS because we find
       other causes for a child’s death, especially for young infants two to three
       months old that are premature. They can be easily suffocated by inappropriate
       bedding materials and so that’s one of the causes. Some of the causes are still
       unexplained, but to investigate a child’s death thoroughly, a complete autopsy
       examination must be performed[,] and that was done in this case.

       Dr. Chancellor stated that in reviewing the victim’s prior medical history, she saw
nothing to make her change her mind about the cause of death and added that when she
reviewed other findings, she remained “open to changing [her] mind and changing [her]
opinion.” However, “after review of these medical records, [her] opinion [was] still that the
cause of death [was] asphyxiation due to suffocation.”




                                              -7-
        Dr. Chancellor testified that overall, the victim’s organs and systems “appeared
normal.” She found the cause of death to be asphyxiation due to suffocation and the manner
of death to be a homicide. She agreed that the cause and manner of death were consistent
with a pillow or soft object being placed over the victim’s face, causing asphyxia by
suffocation. Dr. Chancellor opined that due to the victim’s physical development, health and
age, it would be “extremely unusual” for him to become accidentally entrapped in nearby
bedding material and suffer asphyxia by suffocation.

       On cross-examination, Dr. Chancellor described her procedure of examining the bones
and soft tissue for abnormalities, injuries, or hemorrhaging under the surface of the skin
when there is a suspicion of abuse or injury in a child or infant. She testified that in this case,
she found an old subdural hemorrhage and opined that “[it] was at least several weeks,
probably months old.” The only bruise she found was on the victim’s frontal scalp. She did
not recall being told prior to conducting the autopsy that the victim had fallen off a sofa or
that he had a medical history of reflux or gastroesophageal reflux disease (GERD). Dr.
Chancellor was aware of the Caesarean birth due to the prolapsed cord around the victim’s
neck, the development of jaundice, and the acute life threatening event (ALTE) that occurred
during an episode of high fever in which the victim’s oxygen level dropped, requiring oxygen
intervention. After a number of examinations during the ALTE hospitalization, Dr.
Chancellor stated, “[They] could not find any real abnormality of the child.” She
acknowledged that the victim’s history of vomiting was “consistent with GERD.” She
further acknowledged that GERD in an infant can be fatal if the child aspirates, causing
gastric contents to enter the airway. However, she noted that she did not find evidence of
aspiration in this case.

       At the conclusion of the autopsy, Dr. Chancellor notified law enforcement that her
findings included a bruise and petechial hemorrhages and that in her opinion, the victim’s
death was suspicious.

        Before redirect examination, Dr. Chancellor read a medical journal article provided
by the defense. Upon questioning, she stated that the journal article did not change her
opinion. She confirmed that, in her opinion, “this child died from suffocation” and that those
were her “medical opinion[s] based on [her] findings and [her] review of the circumstances
surrounding this death.” At the conclusion of Dr. Chancellor’s testimony, the State rested
its case-in-chief.

       The defense presented Dr. O. C. Smith, a forensic pathologist, as an expert witness.
He began his investigation of this case by reviewing all the material furnished to him and
then researching the medical literature. He stated that he had cause for concern after



                                                -8-
reviewing the current Medical Examiner’s work on the case and the manner in which the
autopsy was conducted. In explaining his concerns, he stated,

       Well, primarily, the autopsy being performed prior to having the medical
       record or the medical information caused – I think one of the big upsets is the
       fact that through the medical literature on this child, this child had [GERD]
       and also had an acute life threatening event which[,] by virtue of not having
       those records, the autopsy pathologist would be performing a standard autopsy.
       With gastroesophageal reflux disease, which can be lethal, that area of the
       body where the stomach meets the esophagus was not studied. However, other
       ancillary changes in the body would support the clinical diagnosis of
       gastroesophageal reflux disease by virtue of there having been changes in the
       lung and some changes in the trachea.

       In reviewing the autopsy report, Dr. Smith testified he saw indications that the victim
had GERD, and the histology slide confirmed “chronic inflammation at the windpipe.” Dr.
Smith recounted his review of the victim’s medical records from birth until death and stated
that he would describe the victim as “a sick child.” He added,

       that brings you to the point that one thing I really become leery of in autopsies
       is when you have a child that apparently has had a long illness, ever since the
       day they were born. When you have a child that is abnormal right since birth,
       it’s always been a flag that there could be some other things coming, and in
       this case, there were.

       Additionally, Dr. Smith stated his concern of testimony regarding “a little brown area
in the brain” and explained, “[T]he finding of that would be indicative perhaps of a bleed
during – during the brain during birth. Premature infants in such – especially when they have
an emergency section and such, may be prone to have a small bleed.”

       Dr. Smith testified to another concern, which was a photograph showing the two
purported petechial hemorrhages in the lower lid of the victim’s left eye. In observing this
photograph, Dr. Smith’s attention was focused on the “heavy green tissue forceps” being
used to pull the eyelid down. He stated,

       [T]hat type instrument is something we never used in manipulating the eye at
       autopsy, mainly because the ridges that are in the plier sections of the forceps
       are elongated triangle[,] and when I match that elongated triangle that’s in the
       ridges of the tweezer, it seems to make two lines on the insides of the eyelid,
       so that if you damage the eyelid with the severe teeth of that forceps you could

                                              -9-
       mimic petechiae because the blood comes up and wells up in there, you get
       these little lines.

       Dr. Smith testified that based on his literature review and experience working with
children, he opined that CPR could cause petechial hemorrhaging. He stated that he found
nothing in his research to support the opinion regarding “sparing around the face.”

        Dr. Smith opined that the “most likely cause of [the victim’s] death” was “[m]ore
likely than not, GERD.” He further stated, “The child can have an acute life-threatening
event, which means an apneic episode from which he does not recover.”

       On cross-examination, Dr. Smith acknowledged that he held Dr. Chancellor’s position
until 2004 when he “resigned under pressure” and because of “some health issues.” Dr.
Smith answered that he had performed five to ten autopsies within the last seven years.

        In reviewing this case, Dr. Smith considered the following factors: the victim’s April
2009 treatment and diagnosis at LeBonheur involving an ALTE, suspected sepsis with
negative workup GERD, and biogastritis; the victim’s multiple admissions; his premature
birth; and the emergency delivery by c-section. Based on these factors, Dr. Smith found the
victim “problematic” and stated, “[T]he cases typically don’t get better. They just get worse
and worse because something went wrong at birth, something continues to be wrong, and
that’s why you have at the end of the year a dead child.”

       Dr. Smith acknowledged that he knew of the history of pillows being placed on the
child’s face, but it did not change his opinion as to the cause of the victim’s death. He agreed
that actually performing the autopsy and “looking at the body” is superior to reading the
record.

       Dr. Smith stated that after he reviewed the autopsy slides for an hour and a half to two
hours, he found some inflammatory cells present in the lungs. He noted, “The damage to the
lungs could be an indicator that the GERD had been affecting the child’s lungs.” Dr. Smith
explained, “There was an aspiration event that consolidated some of the emboli, [and] [t]he
aspiration is reinforced by the fact that the tracheitis is present.”

       Dr. Smith acknowledged that in his past testimonies, he had placed great weight on
the presence of petechiae to indicate asphyxia, and on numerous occasions, based on the
presence of petechiae in the eyes, he had concluded that suffocation was the cause of death.

       On redirect examination, Dr. Smith elaborated on the victim’s medical records and
the concern that the victim suffered from GERD. He discussed incidents of “silent” GERD

                                              -10-
wherein the characteristic vomiting is absent, but there is still aspiration of the stomach
contents into the lungs. In summary, Dr. Smith stated, “[S]ince the primary pathology was
not available[,] then the secondary pathology of the trachea and the lungs is the most
important data that you have that this child is suffering from GERD.” At the close of Dr.
Smith’s testimony, the defense rested.

       After deliberating, the jury returned verdicts of reckless homicide and aggravated
child abuse, for which the trial court imposed concurrent sentences of four years at thirty
percent release eligibility and sixteen years at one hundred percent release eligibility,
respectively.

                                         II. Analysis

        In this appeal, appellant challenges the sufficiency of the convicting evidence and the
trial court’s rulings with respect to the State’s expert witness.

                              A. Sufficiency of the Evidence

       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences

                                             -11-
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       To sustain the jury’s verdict of guilt on the lesser-included offense of reckless
homicide, the State must have proven beyond a reasonable doubt that appellant committed
a reckless killing of another. Tenn. Code Ann. § 39-13-215(a) (2010). To sustain the
conviction of aggravated child abuse, the State must have proven beyond a reasonable doubt
that appellant “knowingly, other than by accidental means, treat[ed] a child under eighteen
(18) years of age in such a manner as to inflict injury” and that “[t]he act of abuse . . .
result[ed] in serious bodily injury.” Id. at §§ 39-15-401(a), -02(a)(1).

       In the light most favorable to the State, the jury heard evidence that on the morning
of December 25, 2009, the nine-month old victim was found unresponsive in his playpen,
which was located in the bedroom that he shared with appellant and his two young siblings.
Officer Long responded to the scene at approximately 10:22 a.m. and found Mr. Leifer
administering CPR to the victim as appellant stood by. Appellant told Officer Long that he
awakened about 10:20 that morning and observed the victim sleeping face-down in his crib.
Appellant said that he had last seen the victim responsive at approximately 3:30 a.m., when
appellant gave him a bottle and put him back to sleep with no problems.

       According to the victim’s mother, Ms. Kennedy, prior to the incident, the victim “was
above a normal nine[-]month old . . . was standing up and starting to walk.” She outlined the
victim’s various medical problems, including a prolapsed umbilical cord at birth, jaundice,
acid reflux problems, and an acute event that occurred the previous April and resulted in an
ambulance trip to LeBonheur Children’s Hospital.

       Ms. Leifer testified that when the family arrived at home from an outing on Christmas
Eve, appellant carried the children inside and readied them for bed. In appellant’s bedroom,
he slept in a daybed, the one-year-old child slept in a crib, the two-year-old child slept in a
toddler bed, and the victim slept in a playpen. There were blankets in the playpen and adult-
sized pillows in the bedroom. Ms. Leifer was the first adult to retire for the evening,
followed by Mr. Leifer. On Christmas morning, she first learned that something was wrong
with the victim when her thirteen-year-old son entered her bedroom to announce that the
children were awake but returned a few minutes later to tell her that the victim was not
breathing. She recalled seeing her husband perform CPR on the victim while her thirteen-

                                             -12-
year-old son called 9-1-1. Ms. Leifer acknowledged a previous incident wherein appellant
had placed a pillow over the victim’s face to quiet him while he was in bed, and appellant
admitted that he had done so. Because Ms. Kennedy told her that “it was no big deal,” Ms.
Leifer did not feel that appellant posed a threat to the children and took no action to limit
appellant’s access to the children.

       Dr. Chancellor performed the autopsy and found petechial hemorrhages on the right
and left sides of the victim’s face as well as two hemorrhages in the left eye, which resulted
from breakage of tiny blood vessels, or capillaries. Dr. Chancellor noted that she found
sparing, the absence of injury on a particular part of the body, of petechial hemorrhages on
the nose and face area of the victim, which “indicated to [her] that there was the possibility
of asphyxiation as a cause of death.” Dr. Chancellor did not believe that the petechial
hemorrhaging or the victim’s resulting death were caused by the CPR.

        Dr. Chancellor testified that overall, the victim’s organs and systems “appeared
normal.” She found the cause of death to be asphyxiation due to suffocation and the manner
of death to be a homicide. She agreed that the cause and manner of death were consistent
with a pillow or soft object being placed over the victim’s face, causing asphyxia by
suffocation. Dr. Chancellor opined that due to the victim’s physical development, health and
age, it would be “extremely unusual” for him to become accidentally entrapped in nearby
bedding material and suffer asphyxia by suffocation.

        On cross-examination, Dr. Chancellor testified that in this case, she found an old
subdural hemorrhage and opined that “[it] was at least several weeks, probably months old.”
The only bruise she found was on the victim’s frontal scalp. Dr. Chancellor was aware of
the Caesarean birth due to the prolapsed cord around the victim’s neck, the development of
jaundice, and the acute life threatening event (ALTE) that occurred during an episode of high
fever in which the victim’s oxygen level dropped, requiring oxygen intervention. Dr.
Chancellor stated that after a number of examinations during the ALTE hospitalization,
“[They] could not find any real abnormality of the child.” She acknowledged that although
the victim’s history of vomiting was “consistent with GERD” and that GERD in an infant can
be fatal if the child aspirates, she did not find evidence of aspiration in this case. Dr.
Chancellor held fast to her opinions in this case after being cross-examined about a medical
journal article. She adhered to her statements and reiterated, “My opinion is still that this
child died from suffocation . . . based on my findings and my review of the circumstances
surrounding this death.”

      Although the defense presented Dr. Smith as an expert witness to contradict Dr.
Chancellor’s findings, Dr. Smith acknowledged that in other cases, he had placed great
weight on the presence of petechiae to indicate asphyxia, and on numerous occasions, based

                                             -13-
on the presence of petechiae in the eyes, he had concluded that suffocation was the cause of
death. The jury heard competing theories from the State’s expert and the defense expert and
credited the State’s expert, as was its prerogative. Based on the testimony of the expert and
lay witnesses, the jury clearly had sufficient evidence by which to convict appellant of
reckless homicide and aggravated child abuse. Appellant is not entitled to relief.

    B. Whether the Trial Court Properly Admitted the Medical Examiner’s Testimony

        Appellant argues that the trial court erred in allowing the medical examiner to testify
regarding the victim’s cause of death because her opinion was not supported by a reliable
scientific basis.

      We begin our analysis with the proposition that admissibility of expert testimony is
governed by the Tennessee Rules of Evidence:

       If scientific, technical, or other specialized knowledge will substantially assist
       the trier of fact to understand the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. Our supreme court has further defined the role of the trial court in
assessing the propriety of expert testimony:

       Trial courts act as gatekeepers when it comes to the admissibility of expert
       testimony. Their role is to ensure that an expert, whether basing testimony
       upon professional studies or personal experience, employs in the courtroom the
       same level of intellectual rigor that characterizes the practice of an expert in
       the relevant field. A court must assure itself that the expert’s opinions are
       based on relevant scientific methods, processes, and data, and not upon an
       expert’s mere speculation. The court’s reliability analysis has four general
       inter-related components: (1) qualifications assessment, (2) analytical
       cohesion, (3) methodological reliability, and (4) foundational reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation marks
omitted).

       The trial court is vested with broad discretion in resolving questions regarding the
admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).
On appellate review, we will not disturb a trial court’s decision regarding the admission or
exclusion of expert testimony absent an abuse of discretion. Scott, 275 S.W.3d at 404; see

                                              -14-
Stevens, 78 S.W.3d at 832. A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the complaining
party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d
319, 337 (Tenn. 2006)). At trial, the burden rests on the party proffering the expert witness
to establish that the evidence “rests upon ‘good grounds.’” Scott, 275 S.W.3d at 404.

       Appellant concedes that Dr. Chancellor was professionally qualified to render an
opinion regarding cause of death. However, he challenges the remaining three Scott factors
with regard to her testimony. In examining the other factors, trial “courts ‘must analyze the
science and not merely the qualifications [of the expert].’” Scott, 275 S.W.3d at 402 (quoting
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997)).

       “To ensure that there is not a significant analytical gap between the expert’s opinion
and the data upon which the opinion is based,” the trial court must “consider whether the
‘basis for the witness’s opinion, i.e., testing, research, studies, or experience-based
observations, adequately supports that expert’s conclusions.’” Id. (quoting Stevens, 78
S.W.3d at 834-35). In doing so, “the courts should consider how and why the expert was
able to extrapolate from certain data to the conclusions that he or she has reached.” Id.
(citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 144-46 (1997)). Expert testimony may
properly be excluded if “‘there is simply too great an analytical gap between the data and the
opinion proffered.’” Id. at 403 (quoting Stevens, 78 S.W.3d at 834).

        Dr. Chancellor testified that she is a medical doctor and that she is board-certified in
anatomic pathology, clinical pathology, forensic pathology, and neuropathology. At a
January 2011 pre-trial hearing, she testified that she had personally performed over 2400
autopsies and had assisted in hundreds more. In the same hearing, Dr. Chancellor testified
that she had received specialized training in petechial hemorrhaging and that certain patterns
of petechia formation were well-recognized by colleagues in her field. Dr. Chancellor clearly
relied on her training and experience in forming her opinions. Based on this evidence, the
trial court properly found sufficient basis for her expert opinions.

        Notwithstanding, appellant claims that because Dr. Chancellor was impeached at trial
with a medical journal article that questioned the causal connection between asphyxia and
petechiae, she was incompetent to render a scientific opinion. Appellant did not present the
article in question at the pre-trial hearing or utilize the article during that hearing to cast
doubt on whether the basis for her opinions supported her conclusions. Instead, he waited
until his cross-examination of Dr. Chancellor, after she had offered her expert opinions
regarding cause and manner of death to the jury, to question her about the contents of the
article. At that point, the article could only be used for impeachment rather than

                                              -15-
disqualification. During questioning about the article, Dr. Chancellor testified before the
jury,

       I am certainly aware that petechial hemorrhages can be called a nonspecific
       finding, that they are found in certain deaths that are not related to asphyxia.
       I have seen petechial hemorrhages in eyes of people who have suffered heart
       disease as a cause of death, who have suffered other types of natural death and
       developed petechiae. I have seen them numerous times in people who have
       been strangled, in other types of injurious situations. Yes, petechial
       hemorrhages are not always found in cases of suffocation. I am aware of that.
       In this case, they were found and their pattern, namely that the sparing around
       the nose and face is suggestive that there was pressure applied in that area
       where the petechiae were formed. Therefore, I believe that this death is the
       result of suffocation.

The medical journal was not substantive evidence and was inadmissible at trial. See Tenn.
R. Evid. 618 (“[Statements . . . in . . . periodicals . . . may be used to impeach the expert
witness’s credibility but may not be received as substantive evidence.”). Dr. Chancellor was
questioned about the contents of the article and agreed with some of the statements contained
therein; however, given the circumstances of this case, she disagreed that the “theory”
advanced by the article was germane to her expert opinions in this case.

       Based upon the evidence taken at the pre-trial hearing and Dr. Chancellor’s education
and experience, the trial court properly allowed Dr. Chancellor to testify as an expert witness.
We conclude that there is no “analytical gap” between the foundation for her opinions and
her conclusions.

      We next consider the remaining Scott factors. With regard to these factors, our
supreme court stated:

       Additionally, the courts should consider the methodological and foundational
       reliability of the expert’s testimony. The methodological inquiry focuses upon
       the reliability of the methodology employed by the expert. The foundational
       inquiry has two steps. The first step is to assess the expert’s field or discipline
       itself by focusing on the reliability of the studies, articles, and data that
       compose the field and that provide the underlying foundation for the expert’s
       testimony. The second step is to analyze the reliability of the underlying facts
       or data upon which the expert’s opinion is predicated. See Tenn. R. Evid. 703.

        ....

                                              -16-
        To assess methodological and foundational reliability, this Court . . . identified
        the following non-exhaustive list of factors for trial courts to consider: (1)
        whether scientific evidence has been tested and the methodology with which
        it has been tested; (2) whether the evidence has been subjected to peer review
        or publication; (3) whether a potential rate of error is known; (4) whether the
        evidence is generally accepted in the scientific community; and (5) whether the
        expert’s research in the field has been conducted independent of litigation.

Scott, 275 S.W.3d at 403-04.

        Dr. Chancellor testified that she relied upon her specialized training in petechial
formation, which was part of her training in forensic pathology, in forming her conclusions.
The defense expert acknowledged that he had also relied on the formation of petechiae in
establishing asphyxia as a cause of death. See e.g., State v. Geraldrick Jones, No. W2002-
00747-CCA-R3-CD, 2003 WL 22446138, at *5 (Tenn. Crim. App. Oct. 17, 2003)
(summarizing Dr. Smith’s expert testimony that petechial hemorrhages indicate asphyxial-
type death). The medical journal article, while not substantive evidence, admittedly
challenged the prevailing view that “petechaie and asphyxia are causally linked.” 1 Nothing
in this methodology suggests that her opinion should not have been heard by the jury.

        Finally, in considering the foundational reliability of Dr. Chancellor’s opinions, courts
must consider “(1) [the] reliability of the field itself and (2) the trustworthiness of the facts
or data utilized by the expert.” Scott, 275 S.W.3d at 407. Appellant concedes the reliability
of the field of forensic science but challenges the trustworthiness of the facts or data relied
upon by Dr. Chancellor in forming her opinions.

       It is undisputed that the victim had petechial hemorrhages. This “fact” or “data” is not
open to interpretation. Appellant debates Dr. Chancellor’s explanation for the petechial
hemorrhages as resulting from asphyxia or suffocation. Dr. Chancellor’s opinions were based
on her training and experience. As noted, Dr. Smith, likewise, agreed that he had often relied
on the presence of petechiae in naming asphyxia as the cause of death. Appellant had ample
opportunity to cross-examine Dr. Chancellor on the continued viability of the theory causally
connecting petechial hemorrhaging with asphyxial-type deaths.



        1
           The medical journal article was not made an exhibit at trial and was not included in the record.
Although appellant attached it to his brief, “‘appendices to briefs do not constitute evidence to be considered
in the review of a case.’” State v. Devon Wiggins, No. W2007-01734-CCA-R3-CD, 2009 WL 1362323, at
*9 (Tenn. Crim. App. May 15, 2009) (quoting Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim. App. 1985)).
Therefore, our review of the article is limited to those excerpts that were embodied in trial testimony.

                                                    -17-
        For these reasons, the trial court did not abuse its discretion in accepting Dr.
Chancellor as an expert witness in forensic pathology and neuropathology. Appellant is not
entitled to relief on this claim.

       C. Whether the Trial Court Properly Limited Appellant’s Cross-Examination
                               of the Medical Examiner

      Appellant contends that the trial court erred by limiting his cross-examination of the
medical examiner. Counsel attempted to impeach Dr. Chancellor with evidence that she had
previously been denied the opportunity to testify as an expert witness because her opinions
were speculative and constituted “guessing.”

        “The propriety, scope, manner and control of cross-examination of witnesses lies
within the discretion of the trial court.” State v. Reid, 213 S.W.3d 792, 839 (Tenn. 2006)
(citing State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995)). We review the trial
court’s decisions concerning the parameters of cross-examination under the abuse of
discretion standard. Keough v. State, 356 S.W.3d 366, 369-70 (Tenn. 2011).

        In a previous, unrelated case, Dr. Chancellor opined in a jury-out hearing that the
manner of the victim’s death was homicide. She admitted that there was no physical evidence
to support the theory but that given the extensive dismemberment of the victim’s body, “in
[her] opinion, when a body is found in this condition, the manner of death is homicide.” Dr.
Chancellor admitted that her opinion was based solely on the victim’s dismemberment and
that there was no actual proof establishing cause or manner of death. According to appellant,
the trial court in the unrelated case apparently did not permit Dr. Chancellor to testify as to
manner of death in that case.

        When appellant asked to cross-examine Dr. Chancellor with regard to the unrelated
case, the trial court in the instant case ruled that it was irrelevant. The former case did not
involve petechial formation or asphyxiation. The line of questioning did not bear on Dr.
Chancellor’s credibility or professional qualifications. Appellant’s proposed impeachment
of Dr. Chancellor carried the possibility of confusing or misleading the jury. The trial court
did not improperly limit appellant’s cross-examination of the medical examiner. See State v.
Ronald Gene Pullon, No. E2012-00385-CCA-R3-CD, 2013 WL 57075, at *4 (Tenn. Crim.
App. Jan. 4, 2013) (“affirm[ing] that a trial court does not violate constitutional norms by
limiting the scope of cross-examination when the potential of such evidence to mislead or
confuse the jury greatly exceeds its probative value”).




                                             -18-
                                   CONCLUSION

       Based on our review of the record, the parties’ briefs, arguments of counsel, and
relevant case law, we discern no error and affirm the judgments of the trial court.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




                                          -19-
