         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    August 8, 2000, Session

                 STATE OF TENNESSEE v. BENJAMIN BROWN

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 96-13456, 57, Carolyn Wade Blackett, Judge



                  No. W1999-00327-CCA-R3-CD - Decided October 24, 2000


Benjamin Brown appeals from his convictions of one count of felony murder committed in the
perpetration of aggravated child abuse and one count of aggravated child abuse. An effective
sentence of life imprisonment was imposed. On direct appeal, he contends (1) the evidence is
insufficient to support his convictions; (2) the lesser offense of criminally negligent homicide should
have been instructed; (3) testimony regarding prior bad acts was erroneously admitted; and (4) his
convictions violate the constitutional protections against double jeopardy. Following review, the
appellant’s conviction for aggravated child abuse is vacated and dismissed as violative of the
protections against double jeopardy. We affirm the appellant’s conviction for felony murder finding
the evidence sufficient to support his conviction. Because the appellant’s motion for new trial as to
felony murder was untimely filed, the remaining issues related to this conviction are waived.

   Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed in part; vacated and
                                    dismissed in part.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J. and
JOHN EVERETT WILLIAMS, J., joined.

Coleman W. Garrett, Memphis, Tennessee, for the appellant, Benjamin Brown.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R.
Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, and Jennifer
Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The appellant, Benjamin Brown, was convicted by a Shelby County jury of one count of
felony murder committed in the perpetration of aggravated child abuse and one count of aggravated
child abuse. He was subsequently sentenced to life imprisonment for felony murder and twenty-five
years for aggravated child abuse. The sentences were ordered to run concurrently. He now appeals
his convictions alleging:

       I. The evidence is insufficient to support his conviction for felony murder;

       II. The trial court erred by failing to instruct the jury as to the lesser offense of
       criminally negligent homicide;

       III. The trial court erred by permitting prior bad acts of the appellant to be introduced
       absent a jury out hearing; and

       IV. The appellant's convictions for both felony murder committed in the perpetration
       of aggravated child abuse and aggravated child abuse violate the principles against
       double jeopardy.

        After a review of the record before us, we conclude that constitutional protections against
double jeopardy prohibit the multiple convictions and punishments for felony murder committed in
the perpetration of aggravated child abuse and aggravated child abuse. As such, the indictment for
aggravated child abuse is dismissed, the resulting conviction is reversed, and the accompanying
sentence is vacated. Finding no further error on behalf of the trial court requiring reversal, we affirm
the appellant’s conviction for felony murder.


                                            Background

       The appellant and Tammy Huff met and started dating in 1992. A few months after they
began dating, the couple announced they were getting married. Ms. Huff was pregnant at the time.
The couple married on April 26, 1994, at the Hernando, Mississippi, home of Tammy's father, James
Riley Banks. On the evening of his daughter's marriage to the appellant, Mr. Banks received a
telephone call from an anonymous female, later identified as Adrena McCoy, informing him that the
appellant was the father of her children. Mr. Banks disclosed this telephone conversation to his
daughter and informed his daughter that her new husband was not welcome in his home. Tammy left
her new husband less than twenty-four hours after they were married, subsequently divorcing the
appellant.

       On September 16, 1994, Ms. Huff gave birth to a daughter, Ashley Denise. The two resided
with Ms. Huff's parents at their Hernando residence. In the summer of 1996, Tammy Huff and the
appellant reconciled and were remarried on July 12, 1996. In August, the appellant, Huff, and their
daughter moved to an apartment in Memphis.

        Soon after moving into the apartment, Tammy began “potty training” Ashley. During the
time, Tammy recalled that the appellant “would fuss at [Ashley] and tell her that if she didn’t get
potty-trained he was going to give her a whipping.” Although Tammy never saw her husband spank


                                                  -2-
Ashley, she did hear him threaten to “whip” her for not using the “potty.” Tammy admitted that
when she confronted the appellant about his threats, he stated that he was not “going to whip her.”
She further admitted that the appellant would chastize her for physically reprimanding the child.


         Ms. Huff testified that she was unhappy in her marriage to the appellant. On September 12,
she decided to leave him. She telephoned her parents and told her father that she wanted to come
home. Mr. Banks informed Tammy that "if she was going to come [home] that she was going to
stay." After Tammy made this telephone call, the appellant confronted her with his disbelief that she
was actually going to leave him. She explained that the appellant became angry and “he like started
choking me.” The appellant relinquished his hold and again began asking Tammy why she was
leaving him. She responded, “Because you’re mean and I don’t trust you.” “[The appellant’s] eyes
like turned red, and . . . he started coming after me. . . .” He placed a knife to her throat and warned
her, “If you leave me, you know, I can, you know, I can kill you. I don’t have anything to lose.” He
then forced Tammy to telephone her parents and tell them that she was not going home.

        Ms. Huff testified that the following morning she took Ashley to daycare. The appellant got
off work at 12:30 and he picked Ashley up from the daycare center. Tammy did not see Ashley
again until 6:30 that evening when the appellant brought Ashley by Tammy’s place of employment.
Tammy was eating her dinner at this time. Ashley sat on Tammy’s lap and ate some chicken nuggets
and a brownie. Ashley appeared healthy at this time. Shortly thereafter, the appellant and Ashley
left and Tammy returned to work.

        At approximately 8:00 p.m., Rita Griffin, a neighbor of the Browns, returned to her residence
at the Woodlake apartment complex in Memphis. As she reached the top of the stairs leading to her
apartment, she saw the appellant coming out of his apartment. The appellant was carrying his two-
year-old daughter, Ashley. The child “was laying on his shoulder . . . it seemed like she was asleep.”
Ms. Griffin entered her apartment and made a telephone call. Within two minutes, she heard
“beating” at her door and asked who was there. The appellant identified himself and exclaimed that
“[his] baby fell down the stairs.” Ms. Griffin let the “very upset” appellant inside her apartment.
The appellant told her that he had sat the child on the steps while he returned to his apartment to get
his keys. When he came back outside, he saw that Ashley was on the ground; “she had fallen down
the steps.”1 Ms. Griffin then telephoned for medical assistance. Meanwhile, the appellant sat down
in a chair and began rocking the child, saying “Ashley, Ashley, wake up.” Ms. Griffin observed that
the child was gasping for breath and was trying to open her eyes. The appellant was shaking the
child in an attempt to revive her. The 911 operator obviously overheard the comments and advised
Ms. Griffin to tell the appellant not to shake the child. The appellant then attempted to give the child
CPR. During this time, Ms. Griffin was unable to observe whether the child had any bruises, cuts
or abrasions on her legs, arms or face.




       1
           The stairs outside the apartment were made of metal and exposed aggregate concrete surface.

                                                        -3-
        At 8:30 p.m., Tammy received a telephone call from the appellant. He informed her that
Ashley had fallen down the stairs. Tammy could hear an ambulance in the background. The
appellant drove to Tammy’s place of employment and the two proceeded to LeBonheur Hospital.
On the way to the hospital, the appellant told Tammy that he forgot his keys and he sat Ashley on
the steps. When he came back outside, Ashley was at the bottom of the steps. She stated that the
appellant, despite emphasizing that Ashley’s condition was serious, was not crying. The appellant
attempted to console his wife, telling her that Ashley was going to be fine.

        Dr. Jeffrey Eugene Schmidt, a pediatric intensive care physician, testified that he was on duty
when twenty-four month old Ashley Brown was brought to the hospital. Ashley was transferred to
ICU from the emergency room at approximately 2:00 a.m. The reports from the ER indicated that
the patient had “severe neurologic injury.” Upon admission to ICU, it was determined that Ashley
had “severe neurologic devastation, severe brain injury.”2 “From direct observation, there was no
evidence of any external trauma. No scratches, bruises, bumps, no swelling, no cuts.” A CAT scan
did not show any signs of severe bleeding. However, the attending physicians observed retinal
hemorrhages that were classified as “fairly severe.” Dr. Schmidt testified that based on the
presence/absence of injuries, he determined that the injury was what is known as “acceleration-
deceleration syndrome.” Specifically, he explained:

        The brain sits in a fluid filled sac called the dura. And especially in little children
        and babies, the ability for the brain to move within that sac is far more than adults.
        In fact, in adults it doesn’t move much at all. In babies it can move enough that the
        connections between the brain and the dura, the tiny blood vessels can get sheared.
        The other – the nerve fibers, too, and the nerve cells can get sheared if there’s a
        sudden impact or acceleration-deceleration force. And then that’s also the same
        explanation for the tiny vessels in the back of the eye. Because of a sudden
        acceleration-deceleration force, these tiny vessels get ruptured and cause the
        bleeding, the hemorrhages in the back of the eye.

Dr. Schmidt advised that “acceleration-deceleration syndrome” was commonly recognized as
“shaken baby syndrome.” The only other explanations consistent with these injuries would be from
“major trauma like high-speed motor vehicle accidents, falls from extreme heights,” but not falling
down a flight of stairs. The “shaking” involved in “shaken baby syndrome” would have to be
“extreme, severe, out of control,” “shaking back and forth violently,” “it requires the head to be
snapped back and forth.”

        Dr. Schmidt testified that the appellant had informed him that Ashley had fallen down the
stairs outside their apartment. Dr. Schmidt was suspicious of this statement because it did not
comport with the degree of injury received by the child and the injuries to the child were inconsistent


        2
            Dr. Schmidt explained that the degree of brain injury is measured by the “glasgow coma score.” The score
ranges from 3 to 15. A normal pe rson will have a score of 15 . When Ashley arrived at the ICU, “her score was four.
. . . and three is ba sically no brain function.”

                                                        -4-
with an accidental injury. He explained that if a two-year-old child fell down thirteen or fourteen
raised concrete and metal stairs, he would expect to find:

       some external evidence of either cuts, abrasions, bruises. If there was neurologic
       injury, then I would expect that . . . her head would have had to have hit something
       and there would be either bruising, bleeding, cuts, abrasions, something that would
       show that her head struck . . . the step or . . . some evidence of external trauma.

No evidence of external trauma was present on the victim’s person. Dr. Schmidt opined that “[t]he
only way that a child could have brain damage as severe as [the victim], . . . is the shaking that would
cause the severe damage to the brain cells.” In support of his conclusion, he stated that the brain
injury was inconsistent with the mechanism of a fall down the stairs and there was the presence of
retinal hemorrhages which you would definitely not see from a fall down the stairs. The victim
died on September 15, at 11:55 p.m. Her death was due to both heart and lung failure.

       Dr. Schmidt testified that his concern over the appellant’s explanation of the victim’s injuries
led him to speak with Tammy Huff’s mother and sister. Both women expressed concern for
Tammy’s safety. When confronted by the evidence from the autopsy of bruising to the victim’s
buttocks and lower back, Dr. Schmidt refused to change his opinion, concluding that a fall would
not have produced a “pattern” bruise. Instead, Dr. Schmidt concluded that a pattern bruise to the
victim’s buttocks would confirm his conclusion of abuse.

        Dr. Wendy Gunther, an assistant medical examiner for Shelby County, performed the autopsy
on the victim. Her examination revealed “some bruising on [the victim’s] left arm and on her
buttocks,” however, she observed “no abrasions, no lacerations.” Dr. Gunther concluded that the
bruising on the buttocks was “consistent with somebody having struck her repeatedly. . . .” Dr.
Gunther explained that this bruising was difficult to see with the naked eye for several reasons. “One
is that bruises in children with dark brown skin are often hard to see, and the other reasons were
because of livermotis. When the dead person is lying face up, the blood collects in their back, so
everything looks kind of dark red.” The bruise measured an area of 5 X 5 inches. This bruising was
determined to be “fairly fresh. It had not been a long time before she was injured or died that this
happened.” Dr. Gunther admitted that the bruises could have been caused “by a very unusual fall.”
Based upon the post-mortem examination, Dr. Gunther concluded:

        I think Ashley Brown died of shaken baby syndrome. When you take a child . . . and
        you shake them really, really, really hard, you can scramble the neurons. The axons
        break apart and the neurons die. . . . There is no other injury which can explain why
        she went into a coma and never came out . . . [w]hy all the neurons in her brain
        either died or were starting to die other than shaken baby.


In refuting the appellant’s explanation that the child fell down the stairs, Dr. Gunther continued:



                                                  -5-
       If this child fell down a flight of concrete steps, she didn’t sustain any injury. There’s
       no skull fracture, there’s no major bleeding next to the brain, there’s no fractures of
       her arms or legs or her collarbones or ribs. There’s no bruising to show where she
       might have hit the steps. The only bruising is that bruise on her arm and the bruising
       on her buttocks. I don’t understand how she could have fallen down a flight of 16
       steps without sustaining any injury. . . . [T]he only thing she can have died of is
       shaken baby syndrome, for she has no injury to her brain except the injury of shaking.

        In his defense, the appellant presented the testimony of Adrena McCoy. McCoy testified that
the appellant is the father of four of her five children. She stated that she and the appellant shared
a home together in Greenville, Mississippi, from May 1994 to May 1996. They also lived together
prior to this period. While the couple lived together, the appellant was responsible for the care of
the children while McCoy was at work. McCoy also testified that she never saw the appellant
physically reprimand any of the children and he cautioned her never to “hit them.” In essence,
McCoy was of the opinion that the appellant was an excellent father and that he could never have
harmed a child.

        Arusher Sturdevant, the appellant’s cousin, testified that, on September 13, 1996, he was at
his brother’s house between 2:00 and 3:00 p.m. playing dominoes. The appellant arrived at the
residence. He had Ashley with him. At first, the appellant tended to Ashley, but when a neighbor’s
child came over and started playing with Ashley, the appellant joined the domino game. Two hours
later the appellant and Ashley left. Roosevelt Robinson, another of the appellant’s cousins,
confirmed that the appellant had been at his house playing dominoes on September 13.

        The thirty-two-year-old appellant testified that he has ten or eleven children.3 He stated that
he met Tammy Huff at Delta State University in November 1993. They married in April 1994 and
divorced soon thereafter. Tammy was pregnant at the time of their marriage. The appellant did not
see Tammy again until May 1996 when he saw her at his mother’s house in Greenville, Mississippi.
This was the first time that the appellant saw his daughter, Ashley. During this meeting, the
appellant and Tammy decided to “try to give it another try” even though the appellant had been
living with Adrena McCoy. In early August, the appellant, Tammy and Ashley moved to Memphis.

        The appellant recalled that, on the evening of September 12, Tammy was disgruntled with
him because he was late picking her up from work and accused him of being with another woman.
An argument ensued and Tammy threatened to leave him. Tammy telephoned her mother and told
her she was coming home. She then proceeded to the door when the appellant grabbed her and told
her to sit down. Tammy sat down and the couple talked. “Everything was normal after that.”

       The following day the couple took Ashley to daycare and then each left for their respective
jobs. At lunchtime, Tammy delivered the car to the appellant since he got off work before she did.
The appellant got off work at 2:30 p.m. and went home. The appellant changed clothes and then


       3
           The appe llant explained that he was not sure whether o ne child was actually his.

                                                           -6-
picked Ashley up at daycare. He then went to his 4:30 appointment with his insurance company.
After the meeting, the appellant and Ashley went to the home of the appellant’s cousin. Shortly after
5:00 p.m., he took Ashley to McDonald’s where she got some chicken nuggets. Between 5:30 and
6:00 p.m., he drove to Tammy’s place of employment. Tammy came out to the car and they
discussed repairing their automobile. She stayed in the car for about thirty minutes, during which
time she played with Ashley and fed her something to eat. The appellant then went to his cousin’s
house where he visited for a while and then returned home. Following this testimony, the appellant
reiterated his version of the circumstances leading to the death of Ashley Denise Brown.

       Based upon this proof, the jury found the appellant guilty of felony murder committed in
perpetration of aggravated child abuse and aggravated child abuse.


                                                     Analysis

        As a preliminary matter, the State contends that the majority of the issues, with respect to the
appellant’s conviction for felony murder, raised by the appellant on appeal have been waived due
to the appellant’s failure to timely file his motion for new trial.4 See Tenn. R. App. P. 3(e); State
v. Nesbit, 978 S.W.2d 872, 880 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359 (1999);
State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998). Accordingly, the State argues that
review should only extend to the review of the sufficiency of the evidence and sentencing, as well
as plain errors affecting the appellant’s substantial rights. See Tenn. R. App. P. 3(e); Tenn. R. App.
P. 13(b); Tenn. R. Crim. P. 52(b).

        The judgment of conviction for the offense of felony murder was entered by the trial court
on April 30, 1999, and the motion for new trial was not filed until June 14, 1999. Rule 33(b), Tenn.
R. Crim. P., provides that the written motion for new trial shall be made “within thirty days of the
date the order of sentence is entered.” The thirty-day period may not be enlarged. See Tenn. R.
Crim. P. 45(b). The thirty-day provision is jurisdictional, and an untimely motion is a nullity. See
Johnson, 980 S.W.2d at 418 (citing State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997)). This court
does not have the authority to waive the untimely filing of a motion for new trial. See Tenn. R.
App. P. 4(a). We are, therefore, without jurisdiction to review the assigned issues stemming from
the appellant’s felony murder conviction with the exception of a sufficiency review of the evidence.
See Johnson, 980 S.W.2d at 418 (citation omitted).


                                              I. Double Jeopardy

       The appellant contends that his convictions for both felony murder committed in the
perpetration of aggravated child abuse and aggravated child abuse violate the principles against


         4
           The judgment of conviction for the offense of aggravated child abuse was entered on May 26, 1999; thus, the
June 14, 1 999, mo tion for new trial w as timely filed. See gene rally Tenn. R. Crim. P. 33(b).

                                                         -7-
double jeopardy. Specifically, he argues that the circumstances leading to both convictions arose
out of a single incident and from a single course of conduct, the shaking of Ashley Brown.

        The general rule is that a defendant can constitutionally be tried and convicted for first degree
felony murder and the underlying felony in a single trial without violating the constitutional
prohibitions against double jeopardy. State v. Blackburn, 694 S.W.2d 934, 936-937 (Tenn. 1985).
 Indeed, there is no double jeopardy violation requiring dismissal or merger where “the two statutes
are directed to separate evils.” Blackburn, 694 S.W.2d at 936 (citing Albernaz v. United States, 450
U.S. 333, 343, 101 S.Ct. 1137 (1981)); see also State v. Denton, 938 S.W.2d 373, 377 n.11 (Tenn.
1996); State v. Lewis, 919 S.W.2d 62, 69 (Tenn. Crim. App. 1995). The key issue is “whether the
legislature intended cumulative punishment.” Blackburn, 694 S.W.2d at 936.

         With consideration of these principles, a panel of this court recently distinguished
convictions for felony murder and aggravated child abuse from the general rule permitting
convictions for both felony murder and the underlying felony. See State v. Bobby G. Godsey, No.
E1997-00207-CCA-R3-DD (Tenn. Crim. App. at Knoxville, Sept. 18, 2000). Judge Wade, writing
on behalf of this court, recognized that “[t]he evil addressed by the legislation at issue is the
aggravated abuse or neglect of a child.” State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD.
Additionally, “[t]he legislative history of the . . . first degree murder statute suggests that the
objective was to increase the degree of the penalty, not to implement an additional penalty.” Id.
This court, in a well-reasoned and thorough analysis, continued to hold that

        [a]ggravated child abuse or neglect is unique among the felonies capable of
        supporting a felony murder conviction because it may be, as indicated in [State v.
        Jennie Bain Ducker, No. M1997-00074-SC-R11-CD (Tenn. Jul. 14, 2000], a lesser
        included offense of homicide. Because the legislature did not clearly intend a
        cumulative punishment for aggravated child abuse where there is a conviction and
        punishment for first degree felony murder arising out of the same aggravated child
        abuse, the defendant’s conviction for the former must be set aside.

State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD. Indeed, the court’s reasoning in State
v. Bobby G. Godsey relies upon principles of law relating to multiple punishments arising from the
same physical conduct within a single criminal episode.

       The issue of multiple punishments arising from a single criminal episode was addressed by
our supreme court in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996). To determine whether offenses
are multiplicitous, several general principles must be considered:

        1. A single offense may not be divided into separate parts; generally, a single
        wrongful act may not furnish the basis for more than one criminal prosecution;

        2. If each offense charged requires proof of a fact not required in proving the other,
        the offenses are not multiplicitous; and


                                                  -8-
        3. Where time and location separate and distinguish the commission of the offenses,
        the offenses cannot be said to have arisen out of a single wrongful act.

Id. at 665. These factors must be considered in determining whether the multiple convictions violate
double jeopardy.

        In the present case, the appellant was convicted of felony murder committed in the
perpetration of aggravated child abuse and the underlying offense of aggravated child abuse. The
record indicates that the same proof established both offenses; i.e., the same physical acts supporting
the appellant’s conviction for aggravated child abuse are the same acts supporting his conviction for
felony murder. Moreover, neither offense required proof of a fact not required in proving the other.
Under principles of double jeopardy relating to multiple convictions, only one offense was
committed and only one conviction may stand. Accordingly, the appellant’s conviction for
aggravated child abuse is vacated.


                                    II. Sufficiency of the Evidence

          In his first issue, the appellant asserts that there is no competent proof in the record to support
both his dual convictions for felony murder committed in the perpetration of aggravated child abuse
and aggravated child abuse. While he notes that circumstantial evidence alone is sufficient to
support a conviction, he argues that the circumstantial evidence in this case is not so strong and
cogent as to exclude every other reasonable hypothesis except his guilt. Specifically, he contends
that the jury’s conclusion that the appellant shook the baby to death “defies logic, reason and
common experience.” In support of his contentions, he avers that he has no history of child neglect
or abuse. Indeed, the proof indicates that not only was he not abusive, but that he was overly
protective of his children. Furthermore, he contends that the proof is consistent with his explanation
as to the cause of the victim’s injuries. Specifically, he submits that “it is possible, and more than
likely, that the child fell . . . [f]rom the top of stairwell floor directly to the bottom, landing on her
buttocks on the bottom step.” This is supported by the bruising to the victim’s buttocks.
Additionally, he admits that “when he saw his child lying at the bottom . . . of the concrete stairwell.
. . . [h]e rushed to her aid and shook her in an attempt to revive her.” He admits that “[h]e obviously
could have shaken the baby violently enough to cause additional injuries.” However, he asserts that
injuring the child under these circumstances would not constitute aggravated child abuse. The State
responds (1) the appellant’s theory that the victim fell directly to the bottom of the stairwell is a
physical impossibility; (2) certain facts in the appellant’s explanation of the incident were
inconsistent; and (3) no prior history of abuse is required before conviction of these crimes.

        Tennessee Rules of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the finding by the trier of fact beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct
and circumstantial evidence. See State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).


                                                    -9-
In addition, because conviction by a trier of fact removes the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. See State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        When a criminal offense is established exclusively by circumstantial evidence, the facts and
circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save
the guilt of the defendant.” State v. Crawford, 470 S.W.2d 610 (Tenn. 1971); State v. Jones, 901
S.W.2d 393, 396 (Tenn. Crim. App. 1995). In other words, “[a] web of guilt must be woven around
the defendant from which he cannot escape and from which facts and circumstances the jury could
draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.
Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

        In its review of the evidence, an appellate court must afford the State the “strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or reevaluate the evidence” in the
record below. Evans, 838 S.W.2d at 191; see also State v. Mann, 959 S.W.2d 503, 518 (Tenn.
1997) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)(weight and inferences from
circumstantial evidence are jury questions)). Likewise, should the reviewing court find particular
conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or the trial
court judgment. Tuggle, 639 S.W.2d at 914.

        The appellant stands convicted of felony murder committed in the perpetration of aggravated
child abuse. At the time of the victim’s death, the crime was defined as

        A killing of another committed in the perpetration of or attempt to perpetrate any .
        . . aggravated child abuse. . . .

Tenn. Code Ann. § 39-13-202(a)(2) (1996 Supp.). Aggravated child abuse occurs when a person

        . . . knowingly, other than by accidental means, treats a child under eighteen (18)
        years of age in such a manner as to inflict injury . . . [and]

        . . .[t]he act of abuse results in serious bodily injury to the child.

See Tenn. Code Ann. §§ 39-15-401(a) (1996 Supp.); Tenn. Code Ann. § 39-15-402(a)(1) (1996
Supp.).

        In the present case, the medical testimony was undisputed that the child died as a result of
“shaken baby syndrome.” The appellant was the sole caretaker of the child during the time period
when the fatal injuries were inflicted. The proof also established that the victim had bruising on her
buttocks consistent with a spanking or firm beating. Again, the jury is the sole arbiter of the
credibility of the witnesses and conflicts in the testimony. Thus, we do not disturb the jury’s findings


                                                  -10-
as to these issues. Moreover, contrary to the appellant’s assertion, the lack of a prior history of abuse
does not preclude conviction for this offense. See, e.g., State v. Antonio Demonte Lyons, No.
M1999-002490CCA0R3CD (Tenn. Crim. App. at Nashville, Feb. 25, 2000) (requirement of
prolonged abuse for conviction of aggravated child abuse is not the law). Thus, giving deference to
the jury’s resolution of the issues of credibility, we conclude that the evidence presented, even
though circumstantial, is sufficient to exclude every other reasonable hypothesis save the guilt of the
appellant.

        Furthermore, the evidence presented belies the appellant’s theory of the case. The victim
exhibited no scrapes or abrasions which would have been consistent with a fall down fourteen
exposed aggregate concrete stairs. Nor did the victim sustain any exterior injuries, including skull
fractures, to her head. For the fall to have occurred as the appellant suggests, the two-year-old victim
had to have propelled herself over the railing. Obviously, the jury rejected this theory. This issue
is without merit.




                                              Conclusion

        After review of the record and the applicable law, we conclude that the appellant’s
convictions for aggravated child abuse and felony murder committed in the perpetration of
aggravated child abuse violate constitutional protections against double jeopardy. The judgment of
conviction and sentence upon the charge of aggravated child abuse is, therefore, vacated and
dismissed. With regard to his conviction for felony murder, the appellant has not shown his
entitlement to appellate relief. Accordingly, the judgment of conviction entered by the trial court for
this offense is affirmed.



                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




                                                  -11-
