         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 29, 2002

                       STATE OF TENNESSEE v. SCOTT BENN

                     Appeal from the Criminal Court for Hamilton County
                           No. 231366    Stephen M. Bevil, Judge


                                  No. E2001-01958-CCA-R3-CD
                                         March 10, 2003

The defendant, Scott Benn, who was originally charged with felony murder and aggravated child
abuse, was convicted of one count of aggravated child abuse. The trial court imposed a sentence of
twenty-five years. In this appeal, the defendant asserts (1) that the trial court erred by failing to
instruct the jury on the lesser included offenses of felony murder and aggravated child abuse; (2) that
the trial court erred by admitting certain evidence; and (3) that the sentence is excessive. Although
the trial court erred by failing to instruct on the lesser included offenses, the error can be classified
as harmless beyond a reasonable doubt. The judgment is, therefore, affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT W.
WEDEMEYER, JJ., joined.

Donna Robinson Miller (on appeal) and Christian J. Coder (at trial), Assistant District Public
Defenders, for the appellant, Scott Benn.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and
Christopher David Poole and Barry A. Steelman, Assistant District Attorneys General, for the
appellee, State of Tennessee.

                                              OPINION

       On September 23, 1999, Sherry Benn, the wife of the defendant, arrived at the emergency
room of T.C. Thompson Children's Hospital in Hamilton County. She was carrying the victim, her
seven-month-old daughter, Alana Benn. Ms. Benn reported that the victim could not breathe and
asked for help. According to Dr. Donna Lett, the pediatrician on duty, the victim had turned blue
and appeared to have been dead for some time. After administering life saving measures for
approximately thirty minutes, Dr. Lett declared the victim dead.

       At trial, Dr. Lett testified that the victim had bruises to both the right and left sides of her
head and a large, raised bruise in the center of her forehead. X-rays revealed that the victim had a
number of fractured ribs. Some of the rib fractures were more than one week old and others were
as little as twenty-four hours old. In addition, the femur of each leg and the tibia of one leg were
broken. It was Dr. Lett's opinion that the injuries to the victim's legs were less than twenty-four
hours old. She made a diagnosis of child abuse, explaining that the victim, who was not yet walking
or crawling, could not have received the injuries any other way. Dr. Lett believed that the injuries
could not have been caused by a fall of less than eight feet.

        Further examination of the victim revealed retinal hemorrhaging, which is indicative of
Shaken Baby Syndrome. According to Dr. Lett, Shaken Baby Syndrome occurs when a baby is
shaken so violently that the brain collides with the inside of the skull, causing severe injury and often
death. She stated that while great force would not be required to inflict the type of injuries suffered
by the victim, a large armspan would be. It was her opinion that a five-year-old child could not have
inflicted the injuries.

        Isaac Morton, the defendant's eleven-year-old stepson, testified that the defendant was alone
in his bedroom with the victim for most of the day on the date she died. He stated that the defendant
cared for him and his siblings, including the victim, while their mother worked. The boy recalled
that he heard the victim crying after his mother left but he did not suspect that someone was hurting
her. He remembered hearing the defendant repeat to the victim, "Why you crying? Why you crying
like that?" According to Morton, the victim stopped crying after approximately one-half hour. He
did not hear her again that night. Morton testified that the defendant left, taking the family's only
car, shortly after his mother returned from work. At that time, the victim was lying on the bed.

        Morton remembered that his mother checked on the victim, discovered that she was not
breathing, and asked, "Has anything been wrong with Alana?" Morton testified that he helped his
mother dress the baby while they waited for the defendant to return with the car. Morton recalled
that as soon as the defendant returned, he and his mother transported the victim to the emergency
room. Morton testified that he had not seen anyone, including the defendant, hit, drop, or otherwise
harm the victim that night. He described the defendant as a good stepfather, one who would not
harm the children. Morton conceded, however, that on one occasion, when he was trying to break
up a fight between the defendant and his mother, the defendant struck him in the face.

         Sherry Benn, who had been married to the defendant for approximately eight years at the time
of the victim's death, testified that the defendant was responsible for the care of their six children
while she was at work. On the night of the offense, she worked until approximately 11:00 p.m. and
had planned to do laundry when she got home. According to Ms. Benn, the defendant left in their
car shortly after her return, as was his custom. As she began gathering clothes to wash, she leaned
over to kiss the victim and noticed that she was not breathing. When the defendant returned with
the car, she left immediately for the emergency room. Ms. Benn testified that she had never seen the
defendant use drugs and that he did not appear to be intoxicated on the night of the victim's death.

         Ms. Benn testified that the victim was born prematurely and had stayed in the intensive care
unit for some time after her birth. According to Ms. Benn, the victim needed oxygen at all times and


                                                  -2-
was on a heart monitor. She stated that her six-year-old daughter Amber, who liked to play mother,
often tried to pick up the victim but was not permitted to do so.

       Darrell Whitfield, a member of the crime scene investigation unit of the Chattanooga Police
Department, was assigned to collect evidence at the defendant's residence. He stated that there was
no evidence of any illegal drugs or drug paraphernalia.

        Detective Bill Phillips of the Chattanooga Police Department, who questioned the defendant
about the victim's death, recorded the defendant's statement. The defendant admitted striking the
victim on the front and sides of her head when she would not stop crying. When he realized that the
victim had stopped breathing, the defendant administered rapid chest compressions, hoping her
heartbeat would "catch." His efforts were unsuccessful, however, and he placed the victim on a
pillow so that it would appear that she was sleeping. The defendant informed Detective Phillips that
he had considered attempting to flee, but realized that he had nowhere to go. During the interview,
he assured the detective that he was not trying to protect his wife or their other children by accepting
responsibility for the incident.

       Dr. Frank King, who performed the autopsy of the victim, documented a number of injuries
consistent with child abuse, including blunt trauma to the victim's head, retinal hemorrhaging, and
bleeding in the brain. It was his opinion that the injuries could not have been caused by accidental
means. He stated that dramatic force would be required to cause the degree of retinal hemorrhaging
present in the victim. Dr. King testified that bruising to the victim's face and head was caused by
blows administered less than twenty-four hours prior to her death. It was his view that death was
caused by a combination of blunt trauma, brain swelling, brain hemorrhaging, and retinal
hemorrhaging.

         Dr. King found that the victim had suffered fractures of ribs five through nine on her left side,
with the fracture in rib nine being the most recent. He described the injuries to the victim's ribs as
the result of "squeezing." It was his opinion that a child could not have been powerful enough to
cause the injuries. Dr. King also found "a complete transverse fracture of the distal right femur and
. . . a complete transverse fracture of the distal left femur," explaining that a complete transverse
fracture goes "through the entire thickness of the bone." The hemorrhaging at the leg fractures
indicated that the injuries occurred at about the same time, less than twenty-four hours before the
victim's death. Dr. King described the injuries as extremely painful. It was his opinion that the
victim's host of medical problems, which were related to her premature birth, did not cause her death.

        At trial, the defendant testified that it was his responsibility to care for the children on the
night of the victim's death. He claimed that he left only once, when he went to pick up dinner. The
defendant contended that after dinner, the older children went into the living room to listen to music
while he stayed in the bedroom with the victim. He stated that after he went into the bathroom to
smoke crack cocaine, his oldest daughter knocked on the door, informing him that something was
wrong with the baby. The defendant testified that he told her to go away and later, when he heard
the victim crying, he left the bathroom to check on her. He contended that the victim was alive,


                                                   -3-
lying on the floor next to an oxygen tank when he entered the bedroom. He claimed that he gave the
victim a bottle and she went to sleep. The defendant insisted that the victim was alive when he
placed her on a pillow.

       The defendant recanted the statement he made to Detective Phillips, claiming that he had
confessed his guilt only to protect his oldest daughter, Amber. He stated that Amber had an anger
management problem and had injured her younger brother on at least one prior occasion. The
defendant claimed that Amber, who had been warned not to carry the victim, had dropped her before.
He explained that he chose to be truthful when he learned that because of her age, Amber could not
receive a harsh punishment for harming the victim. He claimed that he fabricated the statement he
made to police, utilizing the injuries he had observed on the victim at the hospital as a guide.

                                                   I
       The defendant first asserts that the trial court erred by failing to instruct the jury on reckless
homicide and criminally negligent homicide as lesser included offenses of felony murder. The state
concedes that reckless homicide and criminally negligent homicide are lesser included offenses of
felony murder, but argues that the issue is moot because the defendant was acquitted of felony
murder. The defendant also asserts that the trial court erred by failing to instruct the jury on reckless
aggravated assault as a lesser included offense of aggravated child abuse. The issue was not
presented in the motion for new trial.

        Generally, the failure to present an issue in a motion for new trial results in waiver. Rule 3(e)
of the Tennessee Rules of Appellate Procedure provides that for appeals “in all cases tried by a jury,
no issue presented for review shall be predicated upon error in the admission or exclusion of
evidence, jury instructions granted or refused, . . . or other ground upon which a new trial is sought,
unless the same was specifically stated in a motion for a new trial; otherwise such issues will be
treated as waived.” See also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a
defendant relinquishes the right to argue on appeal any issues that should have been presented in a
motion for new trial). Whether properly assigned or not, however, this court may consider plain
error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle,
666 S.W.2d 58 (Tenn. 1984).

        Before an error may be so recognized, it must be “plain” and must affect a “substantial right”
of the accused. The word “plain” is synonymous with “clear” or equivalently “obvious.” United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but
especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v.
Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as
a right of “fundamental proportions in the indictment process, a right to the proof of every element
of the offense and . . . constitutional in nature.” In that case, this court established five factors to be
applied in determining whether an error is plain:

        (a) The record must clearly establish what occurred in the trial court;


                                                   -4-
         (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 [must not have waived] the issue for tactical reasons; and
         (e) consideration of the error must be "necessary to do substantial justice.

Id. at 641-42. Our supreme court characterized the Adkisson test as a “clear and meaningful
standard” and emphasized that each of the five factors must be present before an error qualifies as
plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). The right to jury instructions on
lesser included offenses is based, in large measure, upon the constitutional right to trial by jury. See
Tenn. Const. art. I, § 6; State v. Bowles, 52 S.W.3d 69, 77 (Tenn. 2001). The erroneous failure to
charge the appropriate lesser included offenses will qualify as "plain" when the error cannot be
classified as harmless beyond a reasonable doubt. Cf. State v. Ben Mills, No. W1999-01175-CCA-
R3-CD (Tenn. Crim. App., at Jackson, May 3, 2002) (erroneous failure to provide jury instructions
on lesser included offenses did not qualify as plain error where the error could be classified as
harmless beyond a reasonable doubt).

        The question of whether a given offense should be submitted to the jury as a lesser included
offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing
State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law
and fact is de novo with no presumption of correctness. Id.; see also State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). The trial court has a duty "to give a complete charge of the law applicable to the
facts of a case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P.
30. In addition, the trial court has a statutory duty to instruct the jury on all applicable lesser
included offenses. See Tenn. Code Ann. § 40-18-110 (1997).1

        In Burns, our supreme court adopted a modified version of the Model Penal Code in order
to determine what constitutes a lesser included offense:

         An offense is a lesser included offense if:

         (a) all of its statutory elements are included within the statutory elements of the
         offense charged; or
         (b) it fails to meet the definition in part (a) only in the respect that it contains a
         statutory element or elements establishing
         (1) a different mental state indicating a lesser kind of culpability; and/or
         (2) a less serious harm or risk of harm to the same person, property or public interest,
         or
         (c) it consists of


         1
          The legislature has amended section 40-18-110 to provide that for all trials conducted on or after January 1,
2002, the failure o f the defendant to req uest, in writing, an instruction on any lesser included offense shall constitute a
waiver of that instruction.



                                                            -5-
        (1) facilitation of the offense charged or of an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b); or
        (2) an attempt to commit the offense charged or an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b); or
        (3) solicitation to commit the offense charged or an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b).

6 S.W.3d at 466-67. Utilizing this analysis, reckless homicide and criminally negligent homicide
are lesser included offenses of felony murder. See id.; see also State v. Ely, 48 S.W.3d 710, 727
(Tenn. 2001)(stating that reckless homicide is a lesser included offense of first degree murder); State
v. Sims, 45 S.W.3d 1, 21 (Tenn. 2001). In addition, reckless aggravated assault would be a lesser
included offense of aggravated child abuse. See State v. Honeycutt, 54 S.W.3d 762, 771 (Tenn.
2001) (holding that reckless aggravated assault is a lesser included offense of aggravated child
abuse).

         The trial court has a duty to instruct the jury as to a lesser included offense if: (1) reasonable
minds could accept the offense as lesser included; and (2) the evidence is legally sufficient to support
a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see also State v. Langford, 994
S.W.2d 126, 128 (Tenn. 1999). This duty applies whether or not a defendant requests such an
instruction. Tenn. Code Ann. § 40- 18-110(c) (1997). Moreover, our supreme court has held that
trial courts “must provide an instruction on a lesser-included offense supported by the evidence even
if such instruction is not consistent with the theory of the State or of the defense. The evidence, not
the parties, controls whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 188 (Tenn.
2002). Our high court observed that the “jury is not required to believe any evidence offered by the
State,” and held that the authority of the jury to convict on a lesser-included offense may not be taken
away, even when proof supporting the element distinguishing the greater offense from the lesser
offense is uncontroverted. Id. at 189.

         In his initial statement to police, the defendant admitted that he struck the victim several
times in an effort to stop her from crying, but claimed that he never intended to harm the victim and
did not realize that the blows he administered could result in her death. Shortly after the crime, he
told police that the victim's death was the result of his recklessness or negligence rather than his
willful intent to cause injury. In our view, this evidence warranted instructions on reckless homicide
and criminally negligent homicide as lesser included offenses of felony murder. In addition, the
evidence justified an instruction on reckless aggravated assault as a lesser included offense of
aggravated child abuse.

        Because the proof offered at trial justified an instruction on reckless homicide, criminally
negligent homicide, and reckless aggravated assault, the trial court erred by failing to instruct the jury
as to those offenses. Our next inquiry is whether the error was harmless. In Allen, our high court
concluded that when the trial court improperly fails to instruct on a lesser included offense, the
harmless error inquiry is the same as for other constitutional errors: whether it appears beyond a
reasonable doubt that the error did not affect the outcome of the trial. Id. at 191. In making this


                                                   -6-
determination, “a reviewing court should conduct a thorough examination of the record, including
the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the
jury.” Id.

         In this instance, the defendant was acquitted of the charge of felony murder but argues that
he would not have been convicted of aggravated child abuse if the jury had been instructed on all of
the lesser included offenses of felony murder. The defendant cites no authority for this argument.
The failure to provide citation to authorities generally results in a waiver of the issue. See Tenn. R.
App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). In this instance, the claim is simply too
speculative. While the trial court had the duty to charge the lesser included offenses of felony
murder, that error was harmless beyond any reasonable doubt because no conviction at all resulted
from that count in the indictment. An acquittal on the greater charge serves as an acquittal on all
lesser included offenses. See generally Ray v. State, 563 S.W.2d 218, 220 (Tenn. Crim. App. 1977).
An instruction on the lesser included offenses of a count which resulted in an acquittal would not
likely have affected the outcome of the trial with regard to the remaining counts in the indictment.

         As to the second count, aggravated child abuse, the trial court provided instructions on only
one lesser included offense, child abuse. To convict a defendant of aggravated child abuse, the state
must prove that the defendant "knowingly, other than by accidental means," treated the victim "in
such a manner as to inflict injury" and that the act of abuse resulted in "serious bodily injury to the
child." Tenn. Code Ann. §§ 39-15-401(a), -402(a)(1). A conviction for child abuse requires a
showing that the defendant "knowingly, other than by accidental means," treated the victim "in such
a manner as to inflict injury." Tenn. Code Ann. § 39-15-401(a). Both offenses require a "knowing"
state of mind and differ only in that aggravated child abuse requires a showing that the abuse caused
serious bodily injury rather than injury. Reckless aggravated assault, as the name implies, requires
only a "reckless" mental state.

        In Honeycutt, our supreme court ruled that the failure to instruct on reckless aggravated
assault as a lesser included offense of aggravated child abuse was error. It did not engage in
harmless error analysis with regard to the trial court's failure to provide the instruction, however,
having determined that other error in that case warranted reversal. In State v. Cornelius Michael
Hyde, No. E2001-02708-CCA-RMCD (Tenn. Crim. App., at Knoxville, Jan. 15, 2002), our supreme
court remanded the case to this court to specifically consider the impact of its holding in Honeycutt
that reckless aggravated assault is a lesser included offense of aggravated child abuse. In Hyde, the
defendant was charged with aggravated child abuse of his girlfriend's son, who exhibited bruises "all
over his body." Id. The defendant admitted "whipping" the victim with a belt and conceded that the
punishment could have caused some bruising, but denied causing bruises to the victim's face, head,
groin, or arms. The trial court instructed the jury as to child abuse, but failed to provide an
instruction on reckless aggravated assault as a lesser included offense of aggravated child abuse. On
remand, this court held that the failure to provide an instruction on reckless aggravated assault was
error and that the error could not be classified as harmless beyond a reasonable doubt.




                                                 -7-
         In our view, this case is distinguishable from Hyde. First, the injuries that the victim suffered
in this case were extreme, as they resulted in her death. In Hyde, the victim's injuries, while painful,
consisted only of bruising to various parts of his body. Moreover, the record demonstrates that the
defendant received a more favorable verdict than the defendant in Hyde. Hyde was convicted of
aggravated child abuse, the highest crime with which he was charged. Here, the defendant was
charged with felony murder for the death of his daughter, but was acquitted of that offense despite
the compelling proof offered by the state. Had the jury found the defendant guilty of felony murder,
the evidence would have been legally sufficient to support that verdict.

        As stated by Chief Justice Rehnquist in his concurring opinion in Sullivan v. Louisiana, 508
U.S. 275, 283 (1993), "[a]ny time an appellate court conducts harmless-error review it necessarily
engages in some speculation as to the jury's decision making process; for in the end no judge can
know for certain what factors led to the jury's verdict." The real question when there is a
constitutional violation is whether there is "a reasonable probability" that error might have
contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). Because the
evidence of aggravated child abuse was so substantial in this case, it is our view that no "reasonable
probability" exists that the jury would have convicted the defendant of reckless aggravated assault.
Therefore, the trial court's failure to instruct the jury as to the lesser included offense of reckless
aggravated assault would be harmless beyond a reasonable doubt. See Allen, 69 S.W.3d at 191; cf.
State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998) (the failure to instruct on lesser included
offenses may be considered harmless beyond a reasonable doubt when the jury "necessarily" rejects
the lesser included offense by declining to convict on an intermediate offense).

        Because the trial court’s failure to instruct the jury on these lesser included offenses was
harmless beyond a reasonable doubt, no substantial rights of the defendant were affected. Thus, the
error does not qualify as “plain.” See Adkisson, 899 S.W.2d 641-42.

                                                 II
        The defendant next contends that the trial court erred by permitting evidence that he had
struck Isaac Morton and that the victim had suffered broken ribs more than a week before her death
in violation of Tennessee Rule of Evidence 404(b). The state submits that evidence of the rib
fractures was properly admitted to rebut the defendant's claim that the victim was injured accidently
and that proof that the defendant had previously struck Isaac Morton was properly admitted to rebut
the defendant's claim that he was a loving father who would not strike any of his children.

        Rule 404 of the Tennessee Rules of Evidence provides in pertinent part as follows:

               Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
        is not admissible to prove the character of a person in order to show action in
        conformity with the character trait. It may, however, be admissible for other
        purposes. The conditions which must be satisfied before allowing inquiry on
        cross-examination about specific instances of conduct are:
               (1) The court upon request must hold a hearing outside the jury's presence;


                                                   -8-
               (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and the reasons for admitting the evidence; and
               (3) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admissibility is that the trial court find by clear and
convincing evidence that the defendant committed the other crimes or bad acts. State v. DuBose,
953 S.W.2d 649, 654 (Tenn. 1997). Rule 404 was patterned in great measure on State v. Parton, 694
S.W.2d 299 (Tenn. 1985), wherein our supreme court ruled that evidence of other crimes is generally
inadmissible. The terms of this rule establish that character evidence cannot be used to prove that
a person has a propensity to commit a crime. Tenn. R. Evid. 404(b); Adkisson, 899 S.W.2d at 646.
Most authorities suggest that trial courts take a “restrictive approach of 404(b) . . . because ‘other
act’ evidence carries a significant potential for unfairly influencing a jury.” Neil P. Cohen et al.,
Tennessee Law of Evidence § 4.04[8][e] (4th ed. 2000). That perhaps best explains the traditional
posture of the courts that any testimony of prior bad acts by a defendant is not usually admissible
when used as substantive evidence of guilt of the crime on trial. Parton, 694 S.W.2d at 302-03. In
those instances where the prior conduct or acts are similar to the crimes on trial, the potential for
such a result increases. State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995).

        Exceptions to the rule may occur when the other crime is relevant to an issue other than the
accused's character such as identity, motive, common scheme or plan, intent, or absence of mistake.
If, however, unfair prejudice outweighs the probative value of the other crime evidence, courts are
required to exclude the evidence. State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); see also State
v. Zagorski, 701 S.W.2d 808 (Tenn. 1985); State v. Taylor, 669 S.W.2d 694 (Tenn. Crim. App.
1983). When the trial court substantially complies with the requirements of Rule 404(b), this court
will review the trial court’s determination for an abuse of discretion. DuBose, 953 S.W.2d at 652.

        Here, Drs. Lett and King testified that upon examining the victim, they discovered that the
victim had suffered fractures to several of her ribs and that all but one of the fractures had occurred
more than twenty-four hours but less than one week prior to her death. In our view, this evidence
is probative to show that the injuries to the victim were not the result of an accident, an essential
element of aggravated child abuse. See Tenn. Code Ann. § 39-15-402(a)(1). Further, proving the
absence of mistake or accident is one of the purposes for which prior bad act evidence may be
admitted. See Tenn. R. Evid. 404(b); Howell, 868 S.W.2d at 254. Finally, the probative value of
this evidence outweighed the danger of unfair prejudice to the defendant. The evidence was properly
admitted.

        During the cross-examination of Isaac Morton, the defense elicited testimony that the
defendant was a good father whose paramount objective was the care and protection of his children.
The state sought to introduce evidence that the defendant had struck Isaac Morton in the face to rebut
his claim that he would not do anything to harm his children. When an accused places his character
at issue, the prosecution may then offer evidence to rebut the defendant's claims. See Tenn. R. Evid.


                                                 -9-
404(a)(1). Here, the defendant placed his good character at issue, opening the door for the
prosecution to rebut the same. See State v. West, 844 S.W.2d 144, 149 (Tenn. 1992); State v.
Phipps, 883 S.W.2d 138, 152-53 (Tenn. Crim. App. 1994). Further, the probative value of this
evidence was not outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403. Under
these circumstances, the trial court did not abuse its discretion by admitting this evidence.

                                                   III
         Finally, the defendant asserts that his sentence is excessive, complaining that the trial court
erred by the application of enhancement factors (4), (5), (6), and (10). See Tenn. Code Ann. § 40-
35-114 (1997).2 When there is a challenge to the length, range, or manner of service of a sentence,
it is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
"conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        In calculating the sentence for a Class A felony conviction, the presumptive sentence is the
midpoint within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §
40-35-210(c). If there are enhancement factors but no mitigating factors, the trial court shall set the
sentence at or above the midpoint. Tenn. Code Ann. § 40-35-210(d). If there are mitigating factors
but no enhancement factors, the trial court shall set the sentence at or below the midpoint. Id. A
sentence involving both enhancement and mitigating factors requires an assignment of relative
weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. §
40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the
mitigating factors present. Id.

       In arriving at a sentence of twenty-five years, the maximum within the range, the trial court
applied the following enhancement factors:


         2
          Effective July 4, 2002, the legislature has amended Tenn. Code Ann. § 40-35-114 by renumbering original
enhancement factors (1) thru (20) and including as enhancement factor (1) that "the offense was an act of terrorism, or
was related to an act o f terrorism ."

                                                        -10-
       (1) that the defendant has a previous history of criminal convictions or criminal
       behavior in addition to those necessary to establish the appropriate range;
       (4) that the victim was particularly vulnerable because of age;
       (5) that the defendant treated the victim with exceptional cruelty during the
       commission of the offense;
       (6) that the personal injuries inflicted upon the victim were particularly great;
       (10) that the defendant had no hesitation about committing a crime when the risk to
       human life was high;
       (15) that the defendant abused a position of private trust in a manner that
       significantly facilitated the commission of the offense; and
       (18) that the victim, under § 39-15-402, suffered permanent impairment of either
       physical or mental functions as a result of the abuse inflicted.

See Tenn. Code Ann. § 40-35-114(1), (4), (5), (6), (10), (15), and (18) (1997). The trial court found
the following mitigating factors applicable:

       (11) The defendant, although guilty of a crime, committed the offense under such
       unusual circumstances that it is unlikely that a sustained intent to violate the law
       motivated the criminal conduct;
       (13) the defendant had the support of his family;
       (13) the defendant had no prior felony convictions;
       (13) the defendant is known to be kindhearted, very respectful, and well mannered;
       and
       (13) the defendant had not had any disciplinary problems while incarcerated.

See Tenn. Code Ann. § 40-35-113(11), (13) ["any other factor consistent with the purposes of this
chapter"].

        The defendant asserts that the trial court erred by applying enhancement factor (4), that the
victim was particularly vulnerable because of age, because proof that the victim is less than six years
old is an essential element of aggravated child abuse. The state submits that enhancement factor (4)
is applicable because the victim, only seven months old at the time of the offense, was unable to
summon help or resist the attack because of her young age.

        Our supreme court has concluded that enhancement factor (4) "relates more to the natural
physical and mental limitations of the victim than merely to the victim's age." State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993). Thus, the high court found that factor (4) could be used in an
aggravated rape case of a child under the age of thirteen, even though the age of the child is an
essential element of the crime, "if the circumstances show that the victim, because of his age or
physical or mental condition, was in fact 'particularly vulnerable,' i.e., incapable of resisting,
summoning help, or testifying against the perpetrator." Id. Here, the victim's very young age and
physical condition rendered her incapable of resisting the attack or summoning help. The medical



                                                 -11-
issues associated with her premature birth suggest that she was completely dependent upon others,
making her particularly vulnerable to abuse. In consequence, enhancement factor (4) is applicable.

         The defendant next contends that the application of enhancement factor (5), that the
defendant treated the victim with exceptional cruelty, is not supported by the record. Application
of this factor requires a finding of cruelty over and above that inherently attendant to the crime for
which the defendant is convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995).
In other words, such evidence must “denote[] the infliction of pain or suffering for its own sake or
from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of
accomplishing the crime charged.” State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD (Tenn.
Crim. App., at Jackson, Mar. 14, 2000). Enhancement factor (5) has typically been applied in
situations where the victim was tortured or abused. See State v. Davis, 825 S.W.2d 109, 113 (Tenn.
Crim. App. 1991). This court has upheld the application of this factor based on proof of extensive
physical abuse or torture, see State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as
well as proof of psychological abuse or torture, see State v. Thomas Lebron Mills and Carl Franklin
Mills, No. 936 (Tenn. Crim. App., at Knoxville, Dec. 19, 1985) (holding that acts of mental cruelty,
by themselves, can be as vicious and scarring as acts of physical cruelty).

        The record establishes that the victim suffered both blunt trauma to her head and face, as
evidenced by the bruising, and a shaking injury to her brain, which combined to cause her death. In
addition, she had suffered several broken ribs in the hours and days leading up to her death. She also
suffered severely broken bones in both her legs within twenty-four hours of her death. Both Drs. Lett
and King testified that these injuries would have caused excruciating pain. In our view, the trial
court did not err by applying enhancement factor (5).

        The defendant also complains that enhancement factor (6), that the injuries to the victim were
particularly great, should not have been applied because serious bodily injury is an essential element
of aggravated child abuse. The state concedes that this factor is inapplicable. Tennessee Code
Annotated section 40-35-114 specifically prohibits using factors that are elements of the offense to
enhance a defendant's sentence. Our supreme court has held that "proof of serious bodily injury will
always constitute proof of particularly great injury." State v. Jones, 883 S.W.2d 597, 602 (Tenn.
1994). Thus, because serious bodily injury is an element of aggravated child abuse as charged in the
indictment in this case, it was error for the trial court to apply enhancement factor (6) to the
defendant's sentence.

         Finally, the defendant argues that the trial court erred by finding enhancement factor (10),
that the defendant had no hesitation about committing a crime where the risk to human life was high,
applicable. Enhancement factor (10) is properly applied only when a defendant exhibits "a
culpability distinct from and appreciably greater than that incident to the offense for which he was
convicted." Id. at 603. Here, the proof adduced at trial established that the defendant struck the
victim repeatedly in the head with his fist, causing swelling and bleeding in her brain. The defendant
was aware that extra care should have been taken with the victim because of the medical problems
associated with her premature birth. Finally, the damages administered to the victim were so


                                                -12-
extreme as to cause her death. Under these circumstances, it is our view that the application of
enhancement factor (10) was not error.

        The defendant also contends that the trial court erred by refusing to find in mitigation that
he was remorseful and that he did not contemplate that his conduct would cause or threaten serious
bodily injury. The trial court refused to apply these factors, observing that an award of credit for the
grief the defendant suffered "would seem to be like a person setting fire to his house and burning it
to the ground and then claiming as a mitigating factor that he's homeless." That is a fair assessment.
Moreover, the defendant's assertion that he did not contemplate that striking an infant in the head
with his fist would cause serious bodily injury is not credible. In our view, the trial court did not err
by rejecting these mitigating factors.

       In summary, the trial court improperly applied enhancement factor (6) and properly applied
enhancement factors (1), (4), (5), (10), (15), and (18). The trial court determined that the
enhancement factors outweighed the mitigating factors and imposed a sentence of twenty-five years,
the maximum within the range. In our view, the application of the six enhancement factors would
warrant the imposition of the maximum sentence.

        Accordingly, the judgment of the trial court is affirmed.



                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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