        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 2, 2014

               STATE OF TENNESSEE v. ASHLEY BRADSHAW

                  Appeal from the Criminal Court for Shelby County
                    No. 12-04854     J. Robert Carter, Jr., Judge


               No. W2014-00175-CCA-R3-CD - Filed February 9, 2015


Appellant, Ashley Bradshaw, was convicted by a jury of three counts of aggravated child
abuse, three counts of aggravated child neglect, and three counts of aggravated child
endangerment. The trial court merged the convictions into one count of aggravated child
abuse and sentenced appellant to twenty years in the Tennessee Department of Correction.
On appeal, appellant argues that the evidence was insufficient to support her convictions.
Following our review, we affirm the judgment of the trial court but remand for the trial court
to clarify on the judgment sheets that the judgments have been merged into the first count.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;
                                  Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., J.,
joined. J AMES C URWOOD W ITT, J R., J., filed a separate concurring opinion.

Stephen C. Bush, District Public Defender; and Harry E. Sayle III (on appeal), Nigel Lewis
(at trial), Donna Armstard (at trial), and Benjamin Rush (at trial), Assistant District Public
Defenders, Memphis, Tennessee, for the appellant, Ashley Bradshaw.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Abby
Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                                 OPINION

                                                    I. Facts

       This case stems from the injuries received by S.B.1 on April 26, 2012. A Shelby
County grand jury indicted appellant, S.B.’s mother, for three counts of aggravated child
abuse, three counts of aggravated child neglect, and three counts of aggravated child
endangerment. The three counts of each offense reflect three alternate theories for the
aggravating factor: that the victim received serious bodily injury; that a deadly weapon was
used; and that the act of abuse/neglect was “especially heinous, atrocious or cruel, or
involved the infliction of torture to the victim.” Tenn. Code Ann. § 39-15-402(a)(1)-(3).

        At appellant’s September 2013 trial, Memphis Police Officer Gregory Turner testified
that he was dispatched to LeBonheur Children’s Hospital on April 26, 2012, for a child abuse
call. The complainant was a social worker, Regina Morris, who reported that the two- or
three-year-old victim had blisters on her vaginal area, leg, and buttocks and also had possible
burns. When Officer Turner arrived, the hospital staff had already dressed the victim’s
injuries. Officer Turner testified that appellant was in the victim’s room, and he asked her
what happened. Appellant told Officer Turner that she had placed the victim “in the tub to
take a bath” and that she left the room for five minutes, returning when “she heard a loud
yelling and screaming from the tub.” Appellant told him that the victim “had turned on the
hot water and scalded herself.” Appellant removed the victim from the tub and took her to
LeBonheur. Officer Turner testified that appellant was initially calm but that when officers
asked her to leave the victim’s room, “she became kind of irate and stat[ed] to officers that
she didn’t want to talk anymore and [they] need[ed] to leave her alone.”

         On cross-examination, Officer Turner testified that he also spoke to Kelvin Arnold,
Jr., (later identified as appellant’s boyfriend) while he was at LeBonheur and that Mr. Arnold
reported the same scenario as appellant.

        Memphis Police Officer Jeffrey Alan Garey, a crime scene investigator, testified that
he was dispatched to LeBonheur on April 26, 2012, to take pictures in a possible child abuse
case. When he entered the victim’s room, she “was laying [sic] on her back, appeared to be
in distress[,] and she was heavily bandaged and had a few tubes in her.” The bandages were
around her waist, genital area, and lower legs. Officer Garey asked a nurse to remove the
bandages so that he could photograph the injuries. However, because the removal of the
bandages caused the victim pain and distress, the nurse stopped the bandage removal. Officer
Garey proceeded to take photographs of the injuries he could see. Officer Garey

       1
           It is the policy of this court to protect the privacy of minor victims by using their initials.

                                                       -2-
characterized the injuries as “severe water blisters.” He testified that he also saw “welt
marks” on the victim’s thighs, which he photographed as well. The photographs he took of
S.B. were published to the jury.

       Memphis Police Officer Sam Blue, a crime scene investigator, testified that an
investigating officer sent him to the residence where the victim was injured to take
measurements and photographs. Officer Blue testified that the bathtub at the residence
measured five feet long, two and a half feet wide, and eleven inches deep. He measured the
water temperature after running the water for thirty seconds and found that the water was 100
degrees. He drained the tub and ran the water for sixty seconds, after which the water was
118 degrees. Officer Blue said he attempted to take a photograph of the water heater’s gauge
but because of the location of the water heater, he could only photograph the gauge from its
side and could not determine with certainty the gauge’s setting.

        Memphis Police Lieutenant Myron Lawrence testified that when he first encountered
the victim, she was in the emergency room of LeBonheur. She was lying on a bed, sedated
and being cared for by nurses. Her mother (appellant) and her mother’s boyfriend were also
in the room. He talked to appellant about what happened, and appellant said that she had
placed the victim in the bathtub, left for five minutes, and returned after hearing the victim
scream. Appellant told Lieutenant Lawrence that she removed the victim from the bathtub
and took her to LeBonheur. Lieutenant Lawrence testified that he asked appellant and
appellant’s boyfriend to leave the room when the crime scene officer arrived to take pictures
because the nurse said that they had “to limit the child’s exposure” by having fewer people
in the room. Appellant “became irate” and “[b]egan to curse.” Appellant said that the police
would “have to take [her] to jail.” After appellant left the room, the nurse showed the
victim’s injuries to Lieutenant Lawrence and the crime scene officer. Lieutenant Lawrence
said that the victim had “severe burns on her lower extremities[,] [g]enital area[], [and]
buttock area[].” She also had “several of what appear[ed] to [Lieutenant Lawrence] from
[his] experience to be belt loop mark[s] healed up.” After the crime scene officer took
pictures, Lieutenant Lawrence talked to appellant again. Because she was still “irate,”
Lieutenant Lawrence asked her whether she had any mental problems. Appellant responded
that she had been diagnosed with depression. Lieutenant Lawrence asked a Crisis
Intervention Team officer to talk to appellant, and the officer “concluded that she did not
meet the criteria to be transported to the mental institution.” Lieutenant Lawrence again
attempted to communicate with appellant but was unable to do so because she remained “too
irate for [him] to even speak to her.” At that point, Lieutenant Lawrence asked the
Department of Children’s Services (“DCS”) to become involved. A DCS worker came to
the hospital and took custody of the victim and the victim’s brother.




                                             -3-
       Lieutenant Lawrence testified that the next step in the investigation was the
procurement of a search warrant for the residence where the victim was injured. Lieutenant
Lawrence went with Officer Blue to take photographs and measurements at the residence.
Lieutenant Lawrence said that he reviewed Dr. Karen Lakin’s report when it became
available. The report indicated that the victim’s injuries were inconsistent with appellant’s
version of events. After discussing the case with an assistant district attorney general,
Lieutenant Lawrence arrested appellant.

       On cross-examination, Lieutenant Lawrence testified that the decision to arrest
appellant was made on May 10, 2012, and that he and Officer Blue went to the residence
where the victim was injured on May 14, 2012.

        Latisha Garcia testified that she was the victim’s primary nurse at LeBonheur while
the victim was in the emergency department. Ms. Garcia testified that the victim had “severe
burns to her lower extremities and to her buttocks area and her vaginal area.” Ms. Garcia
said that she administered “a tremendous amount of pain medication” to the victim but that
“[i]t was extremely hard to control her pain.” Ms. Garcia also gave the victim an intravenous
drip for fluids, dressed her injuries, covered her in a blanket for warmth, and inserted a
catheter. She explained that the victim was able to verbalize that she needed to urinate but
would not urinate on her own, thus requiring Ms. Garcia to catheterize her. When she
inserted the catheter, she discovered that the victim also had “additional injuries . . . on the
inside of the vaginal area.” Ms. Garcia recalled that appellant was in the room and that she
encouraged appellant to “be with [the victim] and touch her” and “talk to her,” but appellant
did not do so. Ms. Garcia testified that appellant told the victim to be quiet on several
occasions. Ms. Garcia told appellant that the victim was in pain, but according to Ms.
Garcia, appellant did not appear distressed that her child was in pain. Ms. Garcia testified
that she was present when police officers came to photograph the victim’s injuries. She
began removing the victim’s dressings, but “the skin started to come off with the dressing.”
They decided to stop taking pictures because removing the dressings “hurt [the victim] so
much.” Ms. Garcia explained that her treatment of the victim ceased after the victim was
admitted into the hospital, but she knew that the victim would receive a debridement
treatment — “[e]ssentially, a scrubbing of the skin” — each day. Ms. Garcia testified that
the debridement procedure was so painful that patients had to be sedated. Ms. Garcia said
that the hospital’s social workers were always called in when a child came to the hospital
with burns. The social workers were responsible for contacting DCS if necessary.

        On cross-examination, Ms. Garcia testified that when she first encountered the victim,
she noticed the victim’s reddened skin; blisters had not yet formed. Ms. Garcia agreed that
the victim was brought to the hospital soon after being burned but that because blisters form
at different rates, she could not give a specific time frame for the time between the victim’s

                                              -4-
being burned and her arrival at the hospital. Ms. Garcia said that she did not notice other
marks on the victim at that time. She only saw the victim one other time, the following day,
and no one else was with the victim at that time.

       On re-direct examination, Ms. Garcia testified that while she did not see any marks
on the victim when she first saw her, she later saw “loop marks” that followed a “[v]ery
distinct pattern,” which she associated with a beating. She said that the hospital staff “see[s]
loop marks all the time.”

       Kisa Johnson, a special investigator for DCS, testified that the victim’s case was
referred to her through the child abuse hotline. She went to the hospital and visited the
victim. The nurses showed her blisters on the victim’s bottom. Ms. Johnson then spoke with
appellant. Appellant told her that the victim had turned on the hot water by herself. Ms.
Johnson testified that when she spoke with appellant, appellant was upset with the police
officers but exhibited no other emotion.

        Sheila Renice Arnold testified that she lived in the house where the victim was
injured. The victim was staying at her house along with appellant and the victim’s brother
for a short time while appellant was in the process of getting an apartment. Mrs. Arnold
testified that her son, Kelvin Arnold, Jr., was dating appellant at the time. Mrs. Arnold said
that she used the bathtub in which the victim was injured daily and never had difficulty
adjusting the water. In addition, she had bathed the victim in that bathtub and did not have
difficulty keeping the child safe. Mrs. Arnold testified that the victim was “an average little
two[-]year-old. Hyper and happy.” The victim was toilet-training at the time of the incident
and was wearing pull-up diapers.

        Mrs. Arnold recalled that she was lying in bed with an illness on the day that the
victim was injured and that her son had come into her bedroom to visit. She heard the victim
squeal, and she characterized the squeal as sounding unhappy. The victim’s brother came
into the bedroom and told Mr. Arnold that appellant wished to see him. Two hours later, Mr.
Arnold returned and told Mrs. Arnold what had happened to the victim. Mrs. Arnold
testified that her house had one water heater, which was located in the attic. She had not had
any work done on the water heater either before or after the victim was injured. Both the
water heater and bathtub were in the same condition on the day that the police photographed
them as they were when the victim was injured.

        On cross-examination, Mrs. Arnold agreed that the water became hot very fast in her
bathtub. She further agreed that Mr. Arnold had occasionally bathed appellant’s children.
She also said that in the two hours between Mr. Arnold’s leaving her bedroom and returning
to tell her about the victim’s injuries, she did not realize that anyone had left the house.

                                              -5-
        Dr. Karen Lakin testified that she was an assistant professor of pediatrics at the
University of Tennessee and that she was the medical director of LeBonheur’s Child
Advocacy Resource and Evaluation Services (“CARES”) program. The court accepted her
as an expert in pediatrics with a specialty in child abuse pediatrics. Dr. Lakin testified that
she first saw the victim on the morning of April 27 before the victim’s debridement treatment
began. Dr. Lakin said that this was the best time for her to do a full assessment of the
victim’s injuries because the victim was under conscious sedation for her debridement
treatment. Dr. Lakin testified that the victim “had very, very obvious burns to to her lower
extremities and to . . . the perineal area, which is the genital area, and her buttocks area.” The
victim also “had some bruising in the form of . . . very linear loop marks on her thighs.” Dr.
Lakin characterized the victim’s burns as “partial thickness burns,” also known as “second
degree burns where blisters or bullous start to form.” Dr. Lakin said that the burns on the
victim’s right leg were greater than those on the left leg. The burns “completely encircle[d]”
the victim’s feet, ankles, and lower part of her legs. Dr. Lakin photographed the victim’s
injuries, and those photographs were published to the jury.

        Dr. Lakin testified that she was present during the victim’s debridement procedure.
She explained that the dead tissue was removed, exposing the dermal layer. She further
explained that it was a painful procedure because once the dead tissue was removed, nerve
endings were exposed. Dr. Lakin testified that the victim was hospitalized for one month.
She was in critical condition when Dr. Lakin first saw her because “[s]he was burned over
about [twenty] percent of her body and she was just two years old.” Dr. Lakin explained that
“[b]urns are very, very dangerous and especially to young children because of the risk for
infection.” Illustrative of the dangers of infection, Dr. Lakin said that the victim became
septic during her hospitalization and had to be transferred to the intensive care unit. Dr.
Lakin testified, “[W]e consider this to be very life threatening.” Dr. Lakin stated that the
victim had to receive skin grafts on her right leg because her skin did not heal properly. In
addition, she had to wear “compression garments to guard against scarring and . . .
contractures,” areas where the skin shrinks as it heals, which “can become a major
debilitating complication.” Dr. Lakin testified that the victim still experienced scarring as
an inevitable part of her healing process. Dr. Lakin identified photographs of the victim’s
scarring as of the time of trial.

       Dr. Lakin opined that based on the severity of the victim’s burns, it “would be
unlikely to have occurred by a two[-]year-old independently on her own.” She said that the
history of the injuries as documented by the emergency room physicians was not consistent
with the pattern of burning. Dr. Lakin highlighted the fact that the victim had deep burns on
both legs. She opined that “a child her age would have been able to get out if she was
beginning to be burned unless . . . there was something preventing her from getting out and
getting away.” She explained that a child who is burned accidentally would generally only

                                               -6-
be burned on one side rather than both. In addition, the depth of the victim’s burns were
significant because the depth of the burns was “related to the length of time that [the] tissue
is exposed.” Dr. Lakin testified that the victim “had very, very deep, extensive burns.” Dr.
Lakin opined, based on the burn pattern, that the victim’s feet and perineum were in the
water but that her knees were drawn up. She further opined that “if [the victim] [were] trying
to move or trying to squirm, then that could explain how more of one side is going to get
burned than the other.” Dr. Lakin noted that the burn pattern did not match the history given
to the emergency department — that the victim “was in the tub with water running and she
was facing the water, the faucet” — because children burned by “water pouring down the
front of them” would have injuries to the “anterior portion of the thighs[,] the perineal area[,]
. . . [and] [t]he stomach, chin[], and shoulders.”

        Regarding the water temperature, Dr. Lakin opined that it would take more than a
minute in 118-degree water for a partial thickness burn to result. She said that 118 degrees
“would have been very uncomfortable” and opined that “there was something preventing her
from getting away from that heat.” Dr. Lakin testified that in her opinion, the victim’s burns
were non-accidental. She stated that in forming that opinion, she considered the loop marks
“caused by a looped cord being struck on the skin”; the extensiveness of the burns on the
victim’s perineum because “[t]he perineum just does not get burned very easily by accident
even in bathtub incidents”; the circumferential nature of the burns that indicated “an
immersion,” which “are non[-]accidental presentations for the most part”; the bilateral nature
of the burning; and the length of time that it would take for burns to form when immersed
in the hypothetical 118-degree water. Dr. Lakin agreed that it would have taken “sustained
or prolonged exposure to the water” for the victim’s burns to result. Dr. Lakin testified that
part of the history given by one of the victim’s family members “was that it was reported to
[the family member] that the child had had a bowel movement after she had a bath and then
was being cleaned up.” This information was significant to Dr. Lakin because she had
“many cases . . . where [she looked] for a stressful event that may have precipitated an
abusive event.”

       On cross-examination, Dr. Lakin testified that her belief that the victim would have
been able to exit the bathtub on her own came from being told that the victim was a typical
two-year-old and her general pediatric knowledge of the developmental range of two-year-
olds. She agreed that she did not know the temperature of the water at the time that the
victim was burned but stated that she did not need to know the temperature to make the
determination that the victim’s injuries were non-accidental under the circumstances,
including “the severity of the burn, the pattern of the injury, the coexisting bruising and loop
marks, . . . the age of the child, and the possible predisposing inciting event of the bowel
movement.” Dr. Lakin said that the information about the possible bowel movement came
from either the victim’s aunt or grandmother. She agreed that these family members were

                                               -7-
not present when the victim was burned. Dr. Lakin also agreed that appellant “got the baby
to the hospital in a relatively quick time.”

       Following Dr. Lakin’s testimony, the State brought the victim before the jury to
display her burns, essentially as demonstrative evidence. Subsequently, the State rested its
case-in-chief. Appellant did not present evidence on her own behalf.

        After the close of proof and deliberations, the jury convicted appellant as charged on
all nine counts of the indictment. The trial court merged2 the convictions into one conviction
for aggravated child abuse and sentenced appellant to serve twenty years in the Tennessee
Department of Correction. It is from this judgment that appellant now appeals.

                                               II. Analysis

        On appeal, appellant contends that the evidence was insufficient to support her
convictions. Regarding her convictions for aggravated child neglect, she asserts that the
State did not prove that appellant engaged in a continuing course of neglectful conduct. For
her other convictions, she argues that “the circumstantial nature of the evidence diminishes
the strength of the proof and casts doubt on the verdict.”

       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


        2
         The judgment sheets for counts three through nine state that the sentences merged. Therefore, we
are remanding this case to the trial court for the court to clarify on the judgment sheets that the judgments
merged.

                                                    -8-
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
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)).

       In this case, the State charged appellant with nine counts reflecting three separate
factors under which a person may be convicted of aggravated child abuse, neglect, and
endangerment: (1) aggravated child abuse (serious bodily injury); (2) aggravated child
neglect (serious bodily injury); (3) aggravated child endangerment (serious bodily injury);
(4) aggravated child abuse (deadly weapon); (5) aggravated child neglect (deadly weapon);
(6) aggravated child endangerment (deadly weapon); (7) aggravated child abuse (especially
heinous/torture); (8) aggravated child neglect (especially heinous/torture); and (9) aggravated
child endangerment (especially heinous/torture). In addition, as evidenced by its closing
argument, the State proceeded under two theories: (1) that appellant held the victim in the
water; and (2) that appellant left the victim alone in the bathtub.

       Tennessee Code Annotated section 39-15-402 provides the elements of aggravated
child abuse, aggravated child neglect, and aggravated child endangerment:

       (a) A person commits the offense of aggravated child abuse, aggravated child
       neglect or aggravated child endangerment, who commits child abuse, as
       defined in § 39-15-401(a); child neglect, as defined in § 39-15-401(b); or child
       endangerment, as defined in § 39-15-401(c) and:

       (1) The act of abuse, neglect or endangerment results in serious bodily injury
       to the child;

       (2) A deadly weapon, dangerous instrumentality, controlled substance or
       controlled substance analogue is used to accomplish the act of abuse, neglect
       or endangerment;



                                              -9-
       (3) The act of abuse, neglect or endangerment was especially heinous,
       atrocious or cruel, or involved the infliction of torture to the victim . . . .

When the child is under eight years old, the aggravated child abuse/neglect/endangerment
offense is a Class A felony. See Tenn. Code Ann. § 39-15-402(b). Child abuse is defined
as “knowingly, other than by accidental means, treat[ing] a child under eighteen (18) years
of age in such a manner as to inflict injury.” Id. § 39-15-401(a). Child neglect is “knowingly
abus[ing] or neglect[ing] a child under eighteen (18) years of age, so as to adversely affect
the child’s health and welfare.” Id. § 39-15-401(b). Child endangerment occurs when “[a]
parent or custodian of a child eight (8) years of age or less . . . knowingly exposes such child
to or knowingly fails to protect such child from abuse or neglect resulting in physical injury
to the child.” Id. § 39-15-401(c).

       Regarding the aggravating factors,

       “[s]erious bodily injury to the child” includes, but is not limited to, second- or
       third-degree burns, a fracture of any bone, a concussion, subdural or
       subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain contusion,
       injuries to the skin that involve severe bruising or the likelihood of permanent
       or protracted disfigurement, including those sustained by whipping children
       with objects.

Id. § 39-15-401(d). A deadly weapon in this context is “[a]nything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” Id. § 39-11-
106(5)(B). The supreme court has held that an item under this section “will only be
considered a deadly weapon if the defendant in a particular case actually used or intended to
use the item to cause death or serious bodily injury.” State v. McGouey, 229 S.W.3d 668,
674 (Tenn. 2007). “‘Torture’ is defined as ‘the infliction of severe physical or mental pain
upon the victim while he or she remains alive and conscious.’” State v. Sims, 45 S.W.3d 1,
16 (Tenn. 2001) (quoting State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998)). In addition, the
supreme court adopted the following definitions for heinous, atrocious, and cruel:

       Heinous—“Grossly wicked or reprehensible; abominable; odious; vile.”

       Atrocious—“Extremely evil or cruel; monstrous; exceptionally bad;
       abominable.”

       Cruel—“Disposed to inflict pain or suffering; causing suffering; painful.”

State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985) (quoting American Heritage Dictionary
of the English Language).

                                              -10-
        Viewed in the light most favorable to the State, the evidence at trial showed that the
appellant placed the victim in a bathtub and that the two-year-old victim was in bath water
hot enough to scald for long enough to cause partial thickness burns over twenty percent of
her body. The testimony presented at trial indicated that the victim was in excruciating pain
that was difficult to control with medication, that she was hospitalized for a month, that she
underwent multiple procedures and surgeries, and that she has permanent scarring as a result
of her injuries. Dr. Lakin testified that the victim had to have been held in the water for her
not to have exited the bathtub on her own. However, appellant’s story was that she merely
left the victim alone in the bathtub for five minutes and that the victim turned on the hot
water herself. The State presented both versions to the jury, and together, these two versions
account for the nine separate counts.

       Appellant has not contested the sufficiency of the evidence regarding the aggravating
factors — serious bodily injury; use of a deadly weapon; and that the act was especially
heinous, atrocious, cruel or involved torture. Nonetheless, our review of the evidence
indicates that there was sufficient evidence to prove these factors. The victim’s serious
bodily injury was partial thickness burns to twenty percent of her body. The scalding water,
because it actually caused serious bodily injury, was a deadly weapon. Finally, under either
theory posed to the jury, by allowing or forcing her two-year-old daughter to be in scalding
water long enough to cause the burns sustained by the victim, appellant caused pain and
suffering to the victim at a level that was especially heinous, atrocious, and cruel. Thus, for
each conviction, we conclude that the evidence supports the relevant aggravating factor.

       The question remains whether appellant’s conduct amounted to child abuse, child
neglect, and child endangerment. Regarding the three aggravated child abuse convictions,
the evidence was sufficient for any rational jury to find beyond a reasonable doubt that
appellant purposefully held the victim in the water and that this conduct resulted in injury to
the victim.

       The evidence was also sufficient to support the three aggravated child neglect
convictions under the alternate theory that appellant left the victim alone in the bathtub for
five minutes.3 Appellant’s leaving the two-year-old victim alone in a bathtub in which the
water became hot very fast adversely affected the victim’s health by causing her to be
severely burned. Appellant’s argument that the State did not prove a continuing course of


        3
          We note that the verdicts are arguably inconsistent. However, “[c]onsistency in verdicts for
multiple count indictments is unnecessary as each count is a separate indictment.” Wiggins v. State, 498
S.W.2d 92, 93-94 (Tenn. 1973); see also State v. Marlo Davis, No. W2011-01548-CCA-R3-CD, 2013 WL
2297131, at *11 (rejecting the application in Tennessee of the mutually exclusive verdicts doctrine), perm.
app. granted (Tenn. Nov. 13, 2013), argued (Tenn. Nov. 11, 2014).

                                                   -11-
neglectful conduct is unavailing because the State does not have to prove that appellant
continually neglected the victim, only that she neglected the victim so as to adversely affect
the child’s health and welfare. The case law she cites in support for her argument in this
regard, State v. Adams, 24 S.W.3d 289, 296 (Tenn. 2000), is inapposite because it concerns
whether there must be an election of offenses when the neglectful conduct spans a period of
time. Moreover, appellant’s actions in immediately seeking medical help for the victim does
not serve to negate her neglectful conduct.

       Finally, the proof at trial supported appellant’s convictions for aggravated child
endangerment because the proof showed that appellant was the victim’s parent, that the
victim was under eight years old, and that appellant either knowingly placed the victim in a
position to be burned, under Dr. Lakin’s theory, or that she failed to protect the victim from
being burned, under her own version of events. Therefore, appellant’s arguments are without
merit, and we affirm the merged judgment of conviction for aggravated child abuse.

                                      CONCLUSION

       Based on the record, the briefs of the parties, and the applicable law, we affirm the
judgment of the trial court. However, we remand this case to the trial court for it to clarify
on the judgment sheets that the judgments merged, not merely the sentences.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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