         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            MAY 1998 SESSION
                                                        FILED
                                                           July 14, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  ) C.C.A. No. 02C01-9707-CR-00246
      Appellee,                   )
                                  ) Shelby County
V.                                )
                                  ) Honorable Chris Craft, Judge
JOHN ADAMS and                    )
RITA ADAMS,                       ) (Aggravated Child Abuse)
                                  )
      Appellants.                 )




FOR THE APPELLANT:                   FOR THE APPELLEE:

John Adams                           John Knox Walkup
Michael E. Scholl                    Attorney General & Reporter
Attorney at Law
200 Jefferson Avenue, Suite 202      Peter M. Coughlan
Memphis, TN 3803                     Assistant Attorney General
                                     425 Fifth Avenue North
Rita Adams                           2d Floor, Cordell Hull Building
A C Wharton, Jr.                     Nashville, TN 37243-0493
Shelby County Public Defender
                                     William L. Gibbons
Walker Gwinn                         District Attorney General
Assistant Public Defender
201 Poplar Avenue, Suite 201         Amy P. Weirich
Memphis, TN 38103                    Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                                  OPINION
       The appellants, John and Rita Adams, were convicted by a jury of

aggravated child abuse through neglect in the Shelby County Criminal Court.

Rita Adams was also convicted of assault. The appellants were sentenced to

twenty years in the Department of Correction. They have appealed. We affirm

all convictions and sentences.



       The victim, Dillon Adams, was born on November 28, 1994. His mother,

Rita Adams, was addicted to codeine. She took methadone daily to treat her

addiction. She took methadone during her pregnancy. At birth, Dillon suffered

from respiratory distress syndrome. He stayed in the hospital several days so

that the fluid in his lungs could be cleared. Dillon was born addicted to

methadone. Fortunately, he did not suffer from any side effects except irritability.

On December 5, 1994, Dillon was well, and he went home with the appellants.



       On December 24, 1994, John Adams called 911 and reported that Dillon

had stopped breathing. Adams testified that when he fed Dillon, formula came

out of his nose and mouth. He testified that Dillon’s lips were blue and his body

was limp. Adams shook Dillon in an attempt to resuscitate him. He also

administered CPR. Adams testified that he told Rita Adams to call 911, but she

refused, saying she could not handle it. Paramedics transported Dillon to

LeBonheur Children’s Medical Center where he was placed on life support.

Dillon was listed in extremely critical condition. A ventilator was inserted in his

windpipe to assist in respiration. Tests revealed that Dillon had multiple severe

injuries that had been left untreated. The baby was less than a month old when

the injuries occurred.



       Dillon was primarily treated by three physicians, all of whom testified at

trial. Dr. Thomas Boulden, a pediatric radiologist, testified that Dillon’s CAT


                                         -2-
scans showed two distinct injuries. Dr. Boulden testified that Dillon had a

fractured skull caused by a direct blow. Dr. Boulden testified that Dillon also had

brain damage. There was bleeding and swelling in the front and back of Dillon’s

brain. Part of his brain had actually dissolved. Dr. Boulden testified that Dillon’s

injuries were consistent with “shaken baby syndrome.” The brain damage was

caused by shaking the child such that the brain repeatedly hit the cranial wall.

As a result of the injury, Dillon has a permanent empty space in his skull where

fluid gathers. Flexible tubing known as a subdural shunt was inserted in Dillon’s

skull to drain built-up fluid in his brain. The tubing runs underneath Dillon’s skin

down to the abdominal cavity where it drains. The skull fracture was several

days old. The brain damage was approximately twenty-four hours old.

Dr. Boulden testified that the skull and brain injuries were the result of child

abuse.



       Dr. Robert Kaufman, also a pediatric radiologist, testified that Dillon had

nine fractures in addition to his skull and brain injuries. Dr. Kaufman testified

that the shaft to Dillon’s right femur or thigh bone was split apart by considerable

force four to seven days before he was brought to the emergency room. The

same area was re-fractured after it had begun to heal. As a result, Dillon’s right

leg was swollen when he arrived at the hospital. Dillon also had fractures to the

edge and end of the bone. Dr. Kaufman testified that Dillon had fractures at the

end of the left femur, the end of the right tibia, and the end of the left tibia. Dr.

Kaufman explained that the fractures to the end of the bone, metaphyseal

fractures, were indicative of child abuse. He explained that metaphyseal

fractures go across the entire bone and were usually caused by a violent twisting

motion and not a fall. The metaphyseal fractures were approximately two weeks

old. Two of the vertebrae in Dillon’s spine were fractured. Dillon also had a

fracture to his ninth rib which occurred approximately four to five days prior to

arriving at the emergency room. There is evidence in the record that Dillon had


                                          -3-
a broken collarbone. Dr. Kaufman testified that the skeletal findings were

entirely consistent with child abuse. He further testified that none of the injuries

were consistent with birth trauma.



       Dr. Gregory Stidham, a pediatric care specialist, was Dillon’s critical care

specialist. Dr. Stidham testified that Dillon’s condition was extremely critical

when he arrived at the emergency room. Dillon would have died without the

medical treatment. Dr. Stidham testified that, in addition to Dillon’s other injuries,

he was emaciated, had burn marks on his hand and foot, and was lethargic to

the point of becoming comatose. Dr. Stidham’s opinion was that Dillon had been

intentionally injured. He testified that Dillon’s brain injury was caused by violent

shaking, that the fracture to his thigh could not have happened by accident, and

that the burn on his foot was suggestive of a cigarette burn. Photographs of the

burns and Dillon’s broken leg were admitted into evidence.



       Both appellants testified. John Adams testified that he worked during the

day, and Rita was the primary care giver of Dillon. The appellants had a one-

year-old child, and Rita had a fourteen-year-old son who lived with them. John

Adams testified that he asked Rita about Dillon’s physical condition on numerous

occasions, but never received a straight answer. John Adams denied abusing or

neglecting Dillon.



       Rita Adams testified that she never abused Dillon. She testified that she

was unaware of most of his injuries. She stated that a week before Dillon went

to the hospital, his right leg was larger than his left leg and was clinched up all

the time. She did not seek medical attention because she assumed that it was a

“lazy leg or whatever.” Despite her daily presence, she denies abusing or

witnessing anyone commit abuse on Dillon. She testified that she thought that

Dillon burned himself on the coffee pot while she was bathing him. She testified


                                         -4-
that she thought that Dillon’s foot was burned when John fell asleep and dropped

a cigarette on the baby. Rita further testified that since Dillon cried all the time

she did not think that anything unusual was wrong with him when he cried.



       Rita’s brother, John Smith, now takes care of Dillon. He testified that

Dillon still has the shunt in his head and that you can see the tube running down

his neck into his stomach. Dillon’s right eye does not move normally with his left

eye, and, he is mentally slower than other children his age.



       The appellants challenge the sufficiency of the evidence. In a sufficiency

of the evidence challenge, the relevant question on appellate review 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 or

crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979); T.R.A.P. 13(e); State v. Duncan, 698 S.W.2d 63

(Tenn. 1985).



       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the testimony of the state's witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405

(Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence

enjoyed at trial with the presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming the

presumption of guilt. Id. On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).



       As applicable to this case, aggravated child abuse occurs when a person

commits the offense of child abuse as defined in Tennessee Code Annotated


                                          -5-
section 39-15-401 (Supp. 1994) and the act results in serious bodily injury to the

child. Tenn. Code. Ann. § 39-15-402(a)(1) (Supp. 1994). Child abuse occurs

when a person, other than by accidental means, knowingly treats a child in such

a manner as to inflict injury or neglects a child so as to adversely affect the

child’s health and welfare. Tenn. Code Ann. § 39-15-401(a). Serious bodily

injury is bodily injury that involves: (A) a substantial risk of death; (B) protracted

unconsciousness; (C) extreme physical pain; (D) protracted or obvious

disfigurement; or (E) protracted loss or substantial impairment of a function of a

bodily member, organ or mental faculty. Tenn. Code Ann. § 39-11-106(a)(33)

(1991). If the victim of the aggravated child abuse is less than six years of age,

then the offense is a class A felony. Tenn. Code. Ann. § 39-15-402(b).



       Rita Adams argues that the evidence of serious bodily injury is insufficient

to sustain her conviction. She argues that the evidence of serious injury is

entirely circumstantial and does not exclude every reasonable cause of injury.

These arguments are without merit. The expert medical evidence of multiple

and severe injuries is absolutely overwhelming. While in jail, Rita wrote several

letters to her brother John Smith. She stated that she was not guilty of abuse,

but maybe neglect. She stated that she knew that she had neglected Dillon.

She stated that Dillon accidentally burned his hand on the stove and that she

should have taken him to the doctor. She stated that Dillon fell out of her bed

onto the “hard” floor a week before Dillon was taken to the hospital. She stated

that John shook Dillon “hard” to get him to breathe on the night that Dillon went

to the hospital. She asked her brother to get John out of jail because he did not

need to be in jail for the things that she had done. She stated that she was guilty

of doing these “crazy” things to Dillon. She stated that she caused this “whole

big tragedy.”



       In the letters, Rita Adams stated that she was depressed and lonely


                                          -6-
before and after her pregnancy with Dillon. She said that she was not herself

and that she no longer cleaned house or took care of herself. She stated that

something just snapped in her head. She states that she could not handle three

children. She said that she never intentionally hurt Dillon, and that she did not

know that “something bad had happened to Dillon.” She stated that she did not

know about many of his injuries. The evidence is sufficient to sustain Rita

Adams’ conviction for aggravated child abuse.



       John Adams argues that the state failed to establish the requisite mens

rea of “knowingly” for the offense of aggravated child abuse. A person commits

a crime knowingly when that person is aware that his or her conduct is

reasonably certain to cause the result. Tenn. Code Ann. § 39-10-302(b) (1989).

John Adams argues that he worked long hours, questioned Rita about Dillon’s

injuries, treated the injuries that he recognized, and was aware of a scheduled

doctor’s visit for Dillon. He further argues that none of the baby’s injuries, except

the burns, were recognizable to a lay person.



       Shortly after Dillon was admitted to the hospital, John Adams gave a

statement to the police. The statement was introduced into evidence. John

Adams stated that he knew that Dillon had burns, a bruise to his back, and a

swollen leg. He knew that Dillon was not eating properly and that he slept all

day. He knew that Rita might have been giving the baby “mini-thins.” He knew

that Rita was having trouble caring for Dillon. He knew that Rita would not take

Dillon to the doctor. He knew that something was wrong with Dillon before he

and Rita went to Wal-Mart to shop on the night that Dillon was rushed to the

hospital. John noticed the burn on Dillon’s hand a week before Dillon was

admitted to the hospital. He stated that it looked like Rita had placed a cigarette

between Dillon’s fingers and watched it burn because the burn was so deep. He

stated that the burn was three or four layers deep and would scar Dillon for life.


                                         -7-
Apparently, he did not take Dillon to the doctor because Rita was treating it with

antiseptic. He also stated that he noticed a bruise on Dillon’s back and saw

Dillon’s eyes rolling back in his head. John stated that “[e]very time I picked him

up, he’d holler like something was hurting him. I couldn’t touch him to change

him. Every time I would pick up his leg to change him, he would scream like

bloody murder, and Rita would say ‘stick a bottle in his mouth and he will stop

crying.’ But I kept noticing these things wrong with him.” He stated that Rita

would hold Dillon’s tongue down to keep him from crying. The evidence is

sufficient to support the jury’s conviction. John Adams knew that something was

wrong with Dillon, he was capable of taking Dillon to the doctor, he did not do so,

and this neglect resulted in serious injury. Rita Adams was the primary care

giver, but this does not absolve John, as the father of Dillon, from responsibility

for Dillon’s welfare, especially when he knew that Rita would not take the baby to

the doctor.



       Rita Adams argues that the crime of aggravated child abuse through

neglect does not exist in Tennessee. She argues that since the aggravated child

abuse statute provides that the “act of abuse” results in serious bodily injury,

aggravated child abuse cannot occur through neglect because neglect is an

omission, not an action. The state contends that this argument ignores the

language of the aggravated child abuse statute which clearly reflects the

legislature’s intent to create the crime of aggravated child abuse through neglect.

The state says the definition of child abuse clearly includes neglect, and the

aggravated child abuse statute incorporates this definition by reference.



       When interpreting or construing the meaning of a statute, we must

ascertain and give effect to the intent of the legislature. State v. Chance, 952

S.W.2d 848, 849 (Tenn. Crim. App. 1997). When possible, we look to the

ordinary meaning of the language used. State v. Harris, 953 S.W.2d 701, 704-


                                         -8-
05 (Tenn. Crim. App. 1996). We presume that the legislature does not intend

absurd results. Chance, 952 S.W.2d at 849. We will avoid such a result if the

terms of the statute can be reasonably construed to do so. Id. We conclude that

the legislature fully intended for aggravated child abuse to include child abuse

through neglect that results in serious injury. The language of the statute

supports such an interpretation. We appreciate the appellant’s argument;

however, her interpretation of the statute produces an absurd result. For

example, a parent who pushes his or her baby into a fire would be guilty of

aggravated child abuse. A parent whose child fell into a fire would not be guilty

of aggravated child abuse if the parent let the child burn. This would be absurd.



       John Adams argues that the trial court erred in allowing the state to

introduce his statement but omitted that he told the police that he was willing to

take a polygraph test. In Tennessee, “[i]t has long been established that the

results of a polygraph examination are not admissible as evidence in a criminal

prosecution.” State v. Campbell, 904 S.W.2d 608, 624-15 (Tenn. Crim. App.

1995). The fact that an accused either offered to take, took, or refused to take a

polygraph examination cannot be admitted as evidence. Id. at 615. This issue is

without merit.



       John Adams also argues that the trial court erred in excluding the

testimony of his former attorney. In his statement to the police, John stated that

he had never shaken the baby. At trial, however, John testified when Dillon

stopped breathing on December 24, he shook the baby in an effort to revive him.

The state made an issue out of John’s failure to include this fact in his statement.

After giving the statement, John Adams told his lawyer that his statement was

not completely correct. Adams wanted his attorney to testify that he, Adams,

had admitted that his statement was not complete. Adams claimed that his

attorney’s testimony fell under the state of mind exception to the hearsay rule.


                                        -9-
The state contended and contends on appeal that the statement is inadmissable

hearsay. The trial court found that the state of mind exception did not apply

because John Adam’s statement to his attorney concerned an event that

happened weeks or months after Adams gave his statement to the police. The

court concluded that John’s statement was not relevant to John’s state of mind at

the time he spoke to the authorities. Rulings on the introduction of evidence are

usually within the discretion of the trial judge and will not be reversed except for

an abuse of that discretion. State v. Campbell, 904 S.W.2d 608, 616 (Tenn.

Crim. App. 1995); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

We find no abuse of discretion. 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). Rule 803(3) of the Rules

of Evidence establishes the state of mind exception to the hearsay rule. The

exception applies to:



       A statement of the declarant's then existing state of mind,
       emotion, sensation, or physical condition (such as intent, plan,
       motive, design, mental feeling, pain and bodily health), but not
       including a statement of memory or belief to prove the fact
       remembered or believed.



       We find no abuse of discretion. John Adams’ statement is a statement of

his belief offered to prove what he believed at the time he talked to his attorney.

It is not a statement that establishes his state of mind at the time he gave a

statement to the authorities.



       John Adams argues that the trial court erred in refusing to instruct the jury

on the defense of necessity on the second count of the indictment, aggravated

child abuse through neglect. The defense of necessity requires that the person

reasonably believe the conduct is immediately necessary to avoid imminent

harm and that the desirability and urgency of avoiding the harm clearly outweigh,


                                         -10-
according to ordinary standards of reasonableness, the harm sought to be

prevented by the law proscribing the conduct. Tenn. Code Ann. § 39-11-609

(1989). Essentially, the appellant argues that, given his work schedule, he did all

he could for Dillon. However, each morning both John and Rita went to the

methadone clinic. The record establishes that John Adams had many

opportunities to take Dillon to the doctor. The trial court denied the appellant’s

request for the instruction because there was no proof that the appellant

neglected the child to prevent harm to the child or someone else. The judge is

not required to charge the jury on an issue that is not fairly raised by the proof.

State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994). The defense of

necessity with regard to neglect is not raised by the proof. This issue is without

merit.



         Both appellants claim that their sentences are excessive. When a

defendant challenges the length, range, or manner of service of his sentence, we

conduct a de novo review on the record with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d) (1990). Where the trial court fails to follow the statutory guidelines,

however, the presumption of correctness no longer applies and our review is

completely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.

1992). In conducting our review we consider: (1) the evidence received at the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing

and arguments concerning sentencing alternatives; (4) the characteristics and

nature of the criminal conduct involved; (5) evidence and information offered by

the parties on the mitigating and statutory enhancement factors; (6) any

statement the defendant wishes to make in his or her own behalf about

sentencing; and (7) the defendant's potential for rehabilitation. Tenn. Code Ann.

§ 40-35-210(b) (1990); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).




                                         -11-
      The presumptive sentence shall be the minimum sentence in the range if

no enhancement or mitigating factors exist. Tenn. Code Ann. § 40-35-210(c)

(1990). If enhancement factors exist but there are no mitigating factors, then the

trial court may set the sentence above the minimum in that range but still within

the range. Should both enhancement and mitigating factors exist, the court must

start at the minimum sentence in the range and enhance the sentence within the

range as appropriate for the enhancement factors. The trial judge shall then

reduce the sentence within the range as appropriate for the mitigating factors.

Tenn. Code Ann. § 40-35-210(d), (e) (1990).



      In determining Rita Adams’ sentence, the court found four applicable

enhancement factors: 1) she was a leader in the commission of an offense, 2)

the child was particularly vulnerable because he was less than a month old when

the injuries occurred, 3) the victim suffered permanent impairment as a result of

the abuse, and 4) the lack of immediate medical care probably would have

resulted in the death of the victim. Tenn. Code Ann. § 40-35-114 (2)(4)(18) &

(19) (Supp. 1994).



      In determining John Adams’ sentence, the court found several applicable

enhancement factors: (1) the appellant has a history of criminal convictions, (2)

the victim was particularly vulnerable because of age, (3) the defendant has a

previous history of unwillingness to comply with the conditions of a sentence

involving release into the community, (4) the victim suffered permanent injury,

and (5) the lack of immediate medical treatment would have probably resulted in

death. Tenn. Code Ann. §§ 40-35-114 (1)(8)(18) & (19) (Supp. 1994).



      The appellants argue that the trial court erred in enhancing their

sentences based on vulnerability due to age because age is an element of

aggravated child abuse through neglect. If the victim of child abuse is less than


                                       -12-
six years old, then the offense of aggravated child abuse is a class A felony. Our

Supreme Court has held that the vulnerability factor may be applied to enhance

a sentence for an offense of which age is an element. State v. Adams, 864

S.W.2d 31, 35 (Tenn. 1993). In Adams, the Court said that the relevant inquiry

is not whether the victim is under a particular age, but “whether the victim was

particularly vulnerable because of age. . . .” Id. at 35 (emphasis in the original).

The Court stated that the vulnerability enhancement factor relates more to the

natural physical and mental limitations of the victim than merely to the victim’s

age. Id. Clearly, the victim in this case was particularly vulnerable because of

his physical and mental limitations. The court found, and the evidence

establishes, that Dillon could not resist the crime, summon help, or testify at a

later date. The one-month-old baby was totally dependant on the appellants for

his care. We find no error with the court’s application of this factor to enhance

the appellants’ sentences.



       Rita Adams also argues that she was not the leader in the commission of

an offense because there is no leader to an offense based on inaction. We find

no merit to this contention. Rita was Dillon’s primary care giver. She further

argues that the court should have considered her post-partum depression and

emotional strain as a mitigating circumstance, as well as the fact that she had

never been arrested or convicted of anything. We find no error with the court’s

finding of no mitigating evidence. Rita Adams could have sought medical help

for depression. Furthermore, the court would have been justified in rejecting her

testimony as to depression based on a finding of a lack of credibility. Her lack of

prior convictions is reflected in her Range I, standard offender status.



       John Adams argues that the court should not have relied on his

convictions because the convictions are very old. From the record it appears

that John Adams does not have a significant history of criminal convictions, but it


                                         -13-
does indicate criminal activity. The other enhancement factors are more than

sufficient to support a twenty-year sentence in this case. John further argues

that there was no evidence that the baby suffered permanent injuries. We

disagree. Dr. Boulden testified that part of Dillon’s brain actually dissolved as a

result of injuries. John Adams also argues that facts relied upon to make the

crime aggravated are the same facts relied upon to find that the appellant treated

the baby with exceptional cruelty. The court did not apply this factor because it

found that it was an element of the offense. John Adams argues that the court

should consider as a mitigating factor that he assisted the police by giving them

a statement. We find no merit to this argument. The appellants’ sentences are

affirmed.



       Finally, the appellants argue that the trial court should have required the

state to “elect” which injuries were caused by the appellants’ neglect. In

Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973), the Tennessee Supreme

Court held that it is the duty of the trial judge to require the state, at the close of it

proof-in-chief, to make an election of the particular offense it will rely on for

conviction and to properly instruct the jury so that the verdict of every juror would

be united on the one offense. Burlison involved various allegations of sexual

misconduct. The reasons for requiring election in cases that contain evidence of

numerous instances of unlawful conduct is to enable the defendant to prepare

for and make his defense to the specific charge; to protect him from double

jeopardy by individualization of the issue; and to insure that the jury's verdict may

not be a matter of choice between offenses, some jurors convicting on one

offense and others, another. Id. at 803.



       The appellants had sufficient information to prepare their defense and

double jeopardy is not an issue. The appellants’ primary concern is that the

jury’s verdict was not unanimous because the members were not required to


                                           -14-
specify which serious injury was caused by the appellants’ neglect. The state

argues, and the trial court found, that an election of offenses was unnecessary

because the offense is one continuous period of neglect. We agree. Indeed, if

the state had indicted the appellants on thirteen counts of aggravated child

abuse through neglect based on the injuries in this case, the appellants would

most likely be arguing that neglect was one continuous offense.



      The judgments of the trial court are affirmed in all respects.




                                                    ________________________
                                                    PAUL G. SUMMERS, Judge


CONCUR:




_________________________
JOHN H. PEAY, Judge




_________________________
THOMAS T. W OODALL, Judge




                                       -15-
