        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Jackson February 14, 2012

   STATE OF TENNESSEE v. MARCIE LYNN PURSELL aka MARCIE
                    PURSELL FRAZIER

                 Appeal from the Criminal Court for Davidson County
                   No. 2007-B-948    J. Randall Wyatt, Jr., Judge


                No. M2011-00286-CCA-R3-CD - Filed March 28, 2013


The Defendant, Marcie Lynn Pursell, was found guilty by a Davidson County Criminal Court
jury of three counts of aggravated child abuse, Class A felonies. See T.C.A. § 39-15-402
(2006) (amended 2009, 2011, 2012). She was sentenced as a Range I, standard offender to
three concurrent terms of fifteen years’ confinement. On appeal, she contends that the
evidence is insufficient to support her convictions and that the trial court erred by not
allowing her to present evidence that she consented to a polygraph examination. We affirm
the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

David M. Hopkins (on appeal), and Ron Pursell and Jodie Bell (at trial), Nashville,
Tennessee, for the appellant, Marcie Lynn Pursell.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Keith Holmgren
and Elizabeth Foy, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

       This case relates to multiple bone fractures received by the Defendant’s son in the five
weeks following his birth. At the trial, Brenda Pursell, the Defendant’s mother and the
victim’s grandmother, testified that the victim was born on November 16, 2006, without
complications. The victim was the Defendant’s first child. She said the Defendant’s only
difficulty during the pregnancy was bladder and kidney infections. She did not know what,
if any, nutritional supplements the Defendant took while pregnant or if the Defendant
underwent treatment for nutritional deficiencies. She said that after the victim was born, the
Defendant and the victim lived at her home for two and one-half to three weeks. She said
that the Defendant and the victim had their own room while living there and that the
Defendant only left the victim with her once for a couple of hours and never used a babysitter
while living at her home.

        Mrs. Pursell testified that she knew Daniel Smith before the victim was born and that
Mr. Smith visited the Defendant while the Defendant lived with her. She said the Defendant
and the victim moved into Mr. Smith’s home the first week of December 2006. She denied
visiting the Defendant at Mr. Smith’s home and said Mr. Smith was “pretty good” with his
children, who attended preschool in 2006. She did not know if anyone babysat the victim
while the Defendant lived with Mr. Smith. She said that she saw Mr. Smith with the victim
at the hospital three times and that Mr. Smith touched the victim “very gently” and showed
a lot of concern for the victim’s health.

       Mrs. Pursell testified that the Defendant asked her for parenting advice and that the
Defendant was concerned about the victim. She said the Defendant woke the victim to feed
him during the night and agreed the Defendant awoke regularly while the victim was a
newborn. She said that on December 14, 2006, the Defendant called and said she was taking
the victim to Vanderbilt Hospital. She said the Defendant stated that the victim choked and
had difficulty breathing.

       Mrs. Pursell testified that she spoke to Metropolitan Police Officer Selene Julia at
Vanderbilt on December 27, 2006. She agreed she was told that the victim had rib fractures
that “were indicative” of being intentionally inflicted. She said she was shocked by the
injuries and did not know the cause. She said the Defendant loved the victim and would not
harm him. She said that she spoke to the police again on February 21, 2007, and that they
told her the victim had more fractures. She said that to her knowledge, her family had no
history of bone disease, although she was adopted and did not know her biological family’s
medical history. She said medical tests to determine if the victim had any medical conditions
that might have caused the injuries were requested, but Vanderbilt did not perform them. She
did not know if the victim’s pediatrician performed the tests after the victim was released
from Vanderbilt. She said that she requested the testing while the victim was at Vanderbilt,
but she denied making other attempts to have the tests performed. She said that after the
victim’s release from the hospital, the victim saw a new pediatrician regularly, that the victim
was “perfectly healthy now,” that the victim lived with her, and that the victim had not
received any new fractures.




                                              -2-
       On cross-examination, Mrs. Pursell testified that the Defendant was excited about her
pregnancy and her being a mother. She said that although the delivery was routine, the
Defendant had difficulty nursing the victim immediately. She said that the Defendant
planned to breast-feed the victim but that the Defendant’s milk formed slowly. She said that
the hospital staff decided to supplement the victim’s diet with formula milk and that the
victim had difficulty drinking and “spit up” the formula.

       Mrs. Pursell testified that after the Defendant and the victim came home, the
Defendant stayed home with the victim while she worked. She said that she helped the
Defendant as much as she could while they lived with her but that the Defendant was already
awake with the victim when she woke to get ready for work. She said that she and the
Defendant fed the victim formula and that the victim choked and vomited the formula. She
said the victim could not keep food in his stomach. She said that the hospital staff changed
the formula twice while the Defendant and the victim were in the hospital after the victim
was born. She said that after they were released from the hospital, the Defendant called the
pediatrician, who changed the formula and told the Defendant to feed the victim smaller
amounts more frequently. She said that the Defendant followed the instructions but that the
feeding problems continued.

        Mrs. Pursell testified that Mr. Smith was the Defendant’s boyfriend and that after the
Defendant moved into Mr. Smith’s home, she spoke to the Defendant daily. She said they
discussed the victim’s feeding problems. She said the Defendant continued to take the victim
to the doctor, who referred the victim to Vanderbilt for a chest scan to determine the cause
of the choking. She said the Defendant called her on December 14, 2006, and told her that
the victim choked and had difficulty breathing. The Defendant took the victim to Summit
Hospital in the early afternoon, and the victim was later transported to Vanderbilt. She said
she left work to meet them at Vanderbilt around 6:30 p.m. She did not recall seeing Mr.
Smith in the emergency room but recalled his being there that night.

        Mrs. Pursell testified that the hospital staff attempted numerous times to put an IV
needle into the victim’s arm and that they “tried every place they could” on the victim’s body,
including his arms, wrists, ankles, and feet. She said that someone held down the victim by
his chest while another person held the victim’s legs and pelvis. She said a third person
attempted to insert the needle into the victim’s arm. She said that when the hospital staff
attempted to insert the needle into the victim’s feet, the staff twisted the victim’s legs and
restrained his body. She said that the staff were unsuccessful after thirty minutes and called
a “special team” to do it. She said that the Defendant cried while the staff tried to put in the
needle. She said that the special team restrained the victim again, that they used a light to
find a vein, and that the needle was inserted.



                                              -3-
       Mrs. Pursell testified that the doctor told them the victim had pneumonia and that fluid
from the victim’s lungs was removed to confirm whether it was viral or bacterial. She was
present for the procedure and said five or six people participated. She said two nurses held
his arms, two nurses held his legs, and the doctor laid his arm across the victim’s chest to
keep the victim from moving. She said the victim was restrained for five to ten minutes and
was not sedated. She said the victim screamed and tried to move, although he was only four
or five weeks old at the time. She said the Defendant picked up the victim as soon as the
doctors allowed her to do so and tried to comfort and calm him. She said that while the
victim was hospitalized, the staff moved the location of the IV needle more than once.

        Mrs. Pursell testified that the victim was catheterized to obtain a urine specimen and
that two nurses held the victim down by his shoulders/chest and legs/pelvis areas during the
procedure. She said that the doctor also performed a spinal tap to test for meningitis and that
the doctor asked the family to leave the room because it was a painful test for the victim. She
said the Defendant stayed with the victim daily in the hospital. She said the Defendant only
left the victim for about thirty minutes to get food.

        Mrs. Pursell testified that while the victim was hospitalized, she asked the staff to
perform tests related to the victim’s digestive problems and that the staff said they had to
treat the pneumonia first. She said she was surprised the victim was released from the
hospital because she thought the doctors were going to determine the cause of the victim’s
digestive problems. She said, though, the hospital released the victim on December 18, 2006.
She said she did not see the victim take a bottle while he was hospitalized from December
14 to December 18. She said the victim’s only food came from IV fluids.

       Mrs. Pursell testified that when she saw the victim on December 14, 2006, it had been
about one week since she last saw him and that the victim looked “tiny and frail.” She said
that because of the victim’s feeding problems, the victim received no nourishment and gained
only a few ounces above his birth weight. She said she did not understand why Vanderbilt
released the victim without diagnosing the feeding problem.

       Mrs. Pursell testified that the Defendant took the victim to Vanderbilt on December
22, 2006, that the hospital staff gave the victim IV fluids, and that the victim was discharged
the next day. She said the hospital staff only provided follow-up care for the pneumonia.
She said that the victim choked frequently and that fluid became caught in his throat, which
required suctioning his throat. She said that the victim’s throat and nose were suctioned
during both hospital stays with a machine and that a “syringe bulb” was used at home, which
did not clear all the mucous. She said the bulb was used immediately after the victim
choked, vomited formula, or had difficulty breathing.



                                              -4-
       Mrs. Pursell testified that on Christmas morning, she, the Defendant, the victim, and
her three other daughters went to the Defendant’s father’s home to celebrate Christmas. She
said the Defendant arrived around 9:00 a.m. She said that everyone left to go to the
Defendant’s grandmother’s home around noon but that she stayed behind. She said she
received a telephone call telling her that the victim had choked badly and “turned blue.” She
said that the caller told her that the Defendant walked to her car to take the victim to the
hospital, that the victim turned blue, and that the Defendant called an ambulance instead.
She said that Vanderbilt treated the victim with IV fluids and that they had to restrain the
victim. She said the family asked the staff to perform tests to determine the cause of the
victim’s feeding difficulty. She said it was during this hospital stay that the fractures were
found.

        Mrs. Pursell testified that she was present at the hospital when the police and a social
worker questioned the Defendant, that the Defendant answered all their questions, and that
the family tried to help determine the cause of the fractures. She said Vanderbilt agreed to
test for bone density problems. She said that she asked them to perform the test several times
previously and that they refused because the test was invasive. She said the victim looked
weak and frail on December 25, 2006. She identified a photograph of the victim that she
took while the victim was in the hospital, which showed the victim in a hospital bed with an
IV in is right arm and a rash on his face caused by an allergic reaction from the hospital’s
laundry detergent. She agreed that the victim was taken to the hospital for the allergic
reaction. She said that at no time during any of the hospital stays did the victim eat from a
bottle.

       Mrs. Pursell testified that on December 27, 2006, Vanderbilt performed a test to
determine the cause of the victim’s feeding difficulties and that the test showed the victim
had “severe reflux” and a swallowing disorder. She said that based on the test results, a
feeding tube was inserted through his nose. She identified a photograph of the victim with
the feeding tube taken one week after he was admitted on Christmas Day. She said that the
feeding tube remained in place for six or seven months and that the victim received feeding
therapy until spring or early summer 2008.

       Mrs. Pursell testified that on December 27, 2006, the Department of Children’s
Services (DCS) restricted the Defendant’s access to the victim in the hospital and that the
Defendant had only supervised visits after the victim was released from the hospital. She
said that although the Defendant could not be alone with the victim, she came to the hospital
daily. She agreed that DCS restricted her access to the victim initially and that DCS placed
the victim in her custody when the victim was released from the hospital in January 2007.
She said that the Defendant could only see the victim if she or the Defendant’s father was
present and that the Defendant visited the victim every day that both their work schedules

                                              -5-
allowed. She said that the Defendant was always gentle with the victim and that she never
saw the Defendant “do anything inappropriate.”

       On redirect examination, Mrs. Pursell testified that the Defendant was not sleep
deprived after the victim was born because the victim slept at night and rarely cried. She said
the Defendant woke the victim at night to feed him. She agreed that it did not take a lot of
force to hold a four-week-old baby but said that the staff had to ensure the victim was
“perfectly still” to insert the IV needle. She said that although the victim could not raise his
head, crawl, or sit upright, the victim could move his arms and legs. When asked if the
Defendant was angry because of the abuse allegations, Mrs. Pursell said that the Defendant
was “hurt more than ang[ry].”

        Mrs. Pursell testified that the victim removed the feeding tube on several occasions
and that she took the victim to the hospital to have the tube reinserted. She said the hospital
staff did not find any new fractures during these visits. She said the victim was three years
old at the time of her testimony, was an active boy, and had no new fractures. She said,
though, that the victim’s digestive and swallowing disorders were diagnosed and that the
victim now received nutrition. She said that before the diagnosis, the formula “aspirated into
his lungs” and caused his pneumonia. She denied being present each time the Defendant fed
the victim but said the victim coughed and vomited every time she fed the victim and every
time she saw the Defendant feed the victim. On recross-examination, she stated that the
feeding tube provided the victim with consistent food, which he had not received without the
tube. She agreed that after the victim was released from Vanderbilt in February 2007, none
of the victim’s doctors performed a skeletal survey.

        Daniel Smith testified that the Defendant was his former girlfriend and that he thought
he was the victim’s father, although paternity had not been established. He said the
Defendant and the victim moved into his home on December 4, 2006. He said that he had
two roommates in early December and that the Defendant and the victim slept in his room.
He did not recall the victim’s sleeping in the bed with them and said the victim had his own
bed. He said that one of his roommates stayed with a girlfriend most of the time and that the
other roommate stayed at the home during the day on most occasions. He said both
roommates moved out around Christmas 2006. He said he had three children, two who lived
with him and a third who lived down the street. He said the victim was the only child living
in his home while the victim was there.

       Mr. Smith testified that he and the Defendant cared for a newborn before the victim
was born. He said that although his work hours varied, he left for work around 7:00 a.m. and
returned home after 5:00 p.m. He said he fed, bathed, and cared for the victim. He said that
the victim ate every two hours, that the victim had difficulty keeping down food, that the

                                              -6-
victim swallowed formula sometimes, and that the victim cried when he could not keep down
the formula. He said it helped to feed the victim slowly. He said the Defendant left him
alone with the victim once or twice while the Defendant went to the store or took a shower.

       Mr. Smith testified that on December 13, 2006, the Defendant called him at work
because the victim had trouble eating. He said that the next day the victim did not feel well
and that he left work to help the Defendant with the victim. He said that when he arrived
home, the victim had problems breathing, had red eyes, and was vomiting mucous. He said
the mucous in the victim’s nose was thicker than usual and had a “yellowish tint” with a
small amount of blood. He said that the victim was released from the hospital on December
18 but returned a few days later. He could not recall where he was that day but recalled
going to the hospital with the Defendant and the victim. He said that on December 25, he
went to his family’s home to celebrate Christmas and that the Defendant went to her family’s
home. He said he, the Defendant, and the victim slept at his home on Christmas Eve.

        Mr. Smith testified that on December 25, 2006, the Defendant called and told him that
the victim had mucous and had vomited and that she was taking him back to the hospital.
Although he denied using a babysitter for the victim while the Defendant lived at his home,
he said friends stopped by his home frequently. He denied leaving the victim alone with his
friends. He said that he and the Defendant did not know how the fractures were caused and
that the Defendant had never accused him or his two roommates of hurting the victim.

       Mr. Smith testified that he spoke with the police about the victim’s injuries, that he
cooperated with their investigation, and that he answered all their questions. He denied
holding the victim in a manner that caused him to scream, squeezing the victim’s ribs, jerking
his legs, pushing on his pelvis, or yanking his arms. He admitted five convictions for
burglary of an automobile but denied further criminal behavior.

       On cross-examination, Mr. Smith testified that at the time the victim lived with the
Defendant and Mrs. Pursell, the victim had feeding difficulties and could not keep down
formula. He agreed he saw the victim’s difficulties before the victim and the Defendant
moved into his home. He said that he saw the victim vomit and that the victim had
“projectile” vomiting regularly. He agreed every feeding was a struggle.

      Mr. Smith testified that he and the Defendant were engaged when she and the victim
moved into his home and that after they moved in, the victim continued to vomit and have
problems keeping down food. He denied the victim’s feeding problems improved over time.
He said that the doctor changed the victim’s formula at least four times and that the
Defendant tried to determine the cause of the problem. He agreed that the Defendant stayed
at home with the victim while he worked, that he and the Defendant cared for the victim

                                             -7-
when they were both home, and that he had unlimited access to the victim. He said that
Michael Burchett, one of his roommates, helped care for the victim when needed and that
Mr. Burchett stayed at home most days. He agreed that the Defendant and Mr. Burchett were
home during the day with the victim and that he did not now how often the Defendant left
the room and allowed Mr. Burchett to care for the victim. He said the Defendant did not
restrict Mr. Burchett’s access to the victim and denied seeing the Defendant mistreat the
victim. He said the Defendant was “a great parent.”

       Mr. Smith testified that on December 13 or 14, 2006, the Defendant came to his
workplace with the victim because she was concerned about the victim’s mucous getting
thicker. He said that when he arrived home from work, the Defendant was getting the victim
ready to go to the hospital. He agreed Mr. Burchett was home when he arrived. He said he
and the Defendant suctioned the mucous multiple times daily. He said that the victim
vomited daily and that he and the Defendant placed a towel around their chests when feeding
the victim in anticipation of the victim’s vomiting. He said the victim consistently vomited
from the time he lived with Mrs. Pursell to the time the victim’s fractures were found.

        Mr. Smith testified that on December 14, 2006, the staff at Summit suctioned mucous
from the victim’s throat, took x-rays, and concluded the victim had pneumonia. He said the
hospital used a suctioning machine and a plastic bulb to extract the mucous. He said that the
Vanderbilt staff restrained the victim when suctioning the mucous and tried three or four
methods to insert an IV needle before being successful. He said three or four people
restrained the victim’s arms, legs, feet, chest, and head while another person tried to insert
the needle. He said the doctor removed fluid from the victim’s lungs. He said that they were
asked to leave the room while the fluid was removed and that it seemed as though the staff
did more than withdraw fluid. He agreed the Defendant was concerned about the victim and
stayed with the victim until he was released.

        Mr. Smith testified that after the victim was released from the hospital on December
18, 2006, the victim and the Defendant stayed at his home. He said the victim continued to
have problems feedings and “looked . . . a little bit more drained than usual.” He said the
victim did not appear to develop like his other children because the victim’s weight did not
increase and he looked fragile and small. He said the Defendant continued to take the victim
to the doctor, who sent the victim to Vanderbilt on December 21 or 22. He said the victim
had difficulty breathing and developed a rash on his face from an allergic reaction. He said
the victim was last hospitalized on December 25. He said that the Defendant was “tore up”
about the victim’s being sick, that it appeared the victim was getting worse, and the
Vanderbilt staff found chest fractures.




                                             -8-
        Mr. Smith testified that he and the Defendant cooperated with the police and answered
their questions. He said that although their access to the victim was restricted, the Defendant
saw the victim as often as allowed. He said the hospital staff tried to feed the victim with a
bottle but that a feeding tube was required. He said the Defendant was as “gentle as
possible” with the victim and did not have postpartum depression.

       On redirect examination, Mr. Smith testified that the victim sometimes cried at night.
He said the victim weighed about six pounds, eight ounces and could lift his head, though
he “wobble[d] back and forth.” He said the victim could move around “a little.” He denied
he was angry at the medical staff for restraining the victim and said he did not know if the
doctors caused the fractures. He said the Defendant was more concerned than angry. On
recross-examination, he stated that if the victim cried at night, he and the Defendant both
cared for the victim or took turns. He said that at times, the Defendant fed the victim while
he sat beside the Defendant. He agreed he was a suspect during the investigation and said
he never accused the Defendant of abusing the victim because she was a good mother and
cared for his other children.

       Melanie Adams-O’Neal testified that she worked as an emergency room nurse at
Summit on December 14, 2006, and that she treated the victim. She said the Defendant sat
by the victim’s bed while she treated the victim for coughing up blood, or something that
looked like blood, and a “slight, little” cut on the roof of his mouth, which was unusual for
the victim’s age. She said she suctioned the mucous with a bulb six times. She said the
mucous was “coffee-colored,” which usually indicated old blood. She said the victim
coughed brown mucous for two or three days.

        On cross-examination, Ms. Adams-O’Neal testified that the victim arrived at the
hospital at 4:27 p.m. and that the triage form showed the victim’s treatment before arriving
was suctioning mucous with a bulb syringe. She agreed that the bulb could have rubbed the
roof of the victim’s mouth. She said a chest x-ray, an oxygen saturation test, and an RSV test
were performed. She agreed the victim’s throat was suctioned six times over a ninety-minute
period, which showed the victim’s parents needed to suction often. She said that the
diagnosis was respiratory distress, atelectasis, and mucous plugs. The medical records did
not show the amount of blood from the cut on the roof of the victim’s mouth. She said the
chest x-ray results would have been sent to Vanderbilt when the victim was transferred. She
said the records did not show the victim suffered pain, was prescribed medication, or was
treated with IV fluids. On redirect examination, Ms. Adams-O’Neal stated that a bulb
syringe was made of “very soft plastic” and that she had not seen a syringe cut the roof of the
mouth.




                                              -9-
        Dr. Laurie MacPherson testified that she treated the victim on December 22, 2006, in
Vanderbilt’s emergency room and that the victim was referred because of his lack of weight
gain. She recalled the Defendant stated that the Defendant believed the victim fed “fairly
well” before being admitted to the hospital. She did not recall if the Defendant said the
victim vomited that day and said the medical records did not note the victim’s vomiting. She
said that the victim’s weight had not changed since December 17 and that an infant gained
a few ounces per week normally. She said the only physician to whom she spoke was the
victim’s pediatrician, who wanted to determine if the victim was feeding. She did not speak
to the treating physician after the victim was admitted. She said that when the victim was
admitted, the Defendant seemed “a little bit disappointed.”

       On cross-examination, Dr. MacPherson testified that she and a medical resident took
the victim’s medical history but that she did not recall taking the history. She said that
according to the pediatrician’s scales, the victim had lost five ounces. She agreed the records
showed the Defendant stated that the victim ate four ounces of formula while at the hospital.
She said that the victim was released on December 23, 2006. On redirect examination, Dr.
MacPherson stated that although the records showed the victim ate four ounces of formula,
there was no notation he vomited. On recross-examination, she stated that nothing in her
records showed she discussed whether the victim vomited.

       Michael Burchett testified that at the time of his testimony, he was confined to the
Tennessee Department of Correction for a burglary conviction and that he had a long
criminal history for burglary. He denied having convictions for violent offenses and
receiving anything in exchange for his testimony. He said that Mr. Smith was his cousin, that
he lived with Mr. Smith in November and December 2006, and that he met the Defendant
through Mr. Smith. He said that while he lived with Mr. Smith, he worked 9:00 a.m. to 5:00
p.m. as a carpet installer, except on the weekends. He said he worked fewer hours around
Christmas and stayed home.

       Mr. Burchett testified that he fed the victim once while the Defendant took a bath, that
the victim ate the formula, and that the victim did not vomit. He said that when he lived at
the home, only his aunt and uncle visited him. He said he never saw the Defendant leave the
victim with anyone for an extended period of time. He said Mr. Smith helped the Defendant
with the victim. He said that the victim cried a lot and that he thought it was the formula.
He said the Defendant was a good mother, cared for the victim, and acted like a “typical”
mother of a newborn baby. He said he thought the Defendant was sleep deprived “now and
then,” had “some postpartum,” and seemed “a little stressed out” at times. He said the victim
awoke crying at night.




                                             -10-
        Mr. Burchett testified that he did not watch the victim because the Defendant was
home. He denied getting frustrated with the victim, holding the victim in a manner that
caused the victim to scream or cry, and squeezing the victim’s ribs and jerking his legs. He
said the Defendant did not hurt the victim. He said that the Defendant became frustrated like
any new mother but that she was a good mother.

        On cross-examination, Mr. Burchett testified that he told the police he helped the
Defendant with the victim if she needed when he was home. He agreed that he changed the
victim’s diaper once or twice and that the Defendant may have left the victim with him while
she left the room. He agreed they worked as a team in caring for the victim. He agreed he
told the police that he had been left alone with the victim twice and that the victim had
feeding problems. He agreed he told the police the victim vomited formula, which had been
changed multiple times. He said the victim vomited the entire time he lived with Mr. Smith.

       Mr. Burchett testified that the home was small and that it was easy to hear the
Defendant if she and the victim were in another room. He said he never heard the Defendant
act frustrated with the victim or scream at the victim. He said he never saw the Defendant
squeeze the victim or yank the victim’s legs or arms. He said the Defendant was gentle with
the victim. He said that the Defendant and Mr. Smith were concerned parents and that he
never saw anything inappropriate from them.

        On redirect examination, Mr. Burchett testified that he worked the day shift when he
was working and that Mr. Smith worked the day shift at his job. On recross-examination, he
stated that Mr. Smith cared for the victim when he came home from work, which allowed the
Defendant to sleep and do things around the home.

        Dr. Roderick Bahner testified that he was the victim’s pediatrician after the victim was
born, that his medical and family histories showed no metabolic diseases, and that there were
no signs that a difficult delivery caused bone fractures to the victim. He said he treated the
victim four to six times for feeding difficulties, formula intolerance, and vomiting. At two
weeks old, the only issue was formula intolerance. He said that on December 13, 2006, the
victim was four weeks old, that he continued to have formula intolerance, and that the
formula was changed.

       Dr. Bahner testified that he treated the victim on December 19, 2006, and that the
victim had lost weight since December 13. He said the victim was diagnosed with
pneumonia, which could have explained the weight loss, but the victim had lost “a large
amount of weight.” He said the victim was “fussy” and had “subconjunctival hemorrages”
caused by coughing related to the pneumonia, which was not unusual and looked like a
bloodshot eye. He denied seeing evidence of “osteogenesis imperfecta” (OI), brittle bone

                                              -11-
disease, or evidence of rickets or metabolic issues impacting the victim’s bones. He agreed
feeding difficulties during the first five to six weeks of life did not impact bone density. He
said formula was not usually supplemented with other vitamins unless there was an
absorption problem. He said infants were tested for some metabolic diseases at birth but
others required specific blood tests. He said x-rays were performed only when there was a
suspicion of a serious bone problem. He agreed he was no longer the victim’s pediatrician
and said he last treated the victim in early 2007.

       On cross-examination, Dr. Bahner testified that if the victim’s father was unknown,
a complete family history could not be obtained. He agreed he did not have the victim’s
father’s family history and did not know if the father’s family had a metabolic disease or OI.
He agreed that he saw the victim on November 30, December 13, and December 16, and that
another doctor in his practice saw the victim on December 5. He said that on November 30,
the victim looked “slightly frail” and weighed six pounds, six ounces and that he noted the
victim had a wet nasal passage. He agreed that two weeks earlier, the victim weighed six
pounds, seven ounces. He said the victim had a fungal infection in his mouth and agreed the
infection “contributed” to his feeding difficulties. He said his records showed the Defendant
“loved” being a new mother. He said he saw nothing that led him to conclude the victim
was being abused. He said the victim had no bruises, scrapes, or cuts.

       Dr. Bahner testified that on December 5, 2006, Dr. Goodwin treated the victim, noted
the victim was “fussy” and had continued feeding difficulty, and changed the victim’s
formula. He agreed the records showed that the victim had zero sucking motion, but he did
not think Vanderbilt received the records. He said that at the December 15 visit, an
abdominal ultrasound was scheduled at Vanderbilt to look for pyloric stenosis. He said that
the victim had gained five ounces since November 30, although the feeding difficulty
continued.

        Dr. Bahner testified that on December 13, 2006, he treated the victim for continued
feeding difficulty. He said that the victim had tried seven different formulas, that the
ultrasound was negative, and that his diagnosis was formula intolerance. He said that on
December 19, the victim weighed six pounds, six ounces at the hospital, one ounce less his
birth weight. He said the victim’s weight would have alerted him to feeding difficulties. He
said he prescribed Pediasure. He agreed the victim did not have cuts, scrapes, or bruises.
He said that he examined the victim’s stomach, arms, legs, and feet and that the victim did
not act as though he was injured. He said the only sign something was wrong internally was
the victim’s vomiting, which he determined was caused by formula intolerance.




                                             -12-
        Dr. Bahner testified that a mild form of OI or metabolic bone disease could not be
diagnosed by looking at a newborn. He agreed that a sick newborn with continued vomiting,
gagging, and respiratory issues warranted a complete differential diagnosis to determine the
cause. He agreed that in addition to the office visits, the Defendant called his office and that
the Defendant acted like a typical new mother who was concerned about the victim. He said
that the victim was first diagnosed with a feeding problem on November 30, 2006, and that
the victim had difficulty tolerating formula two days after his birth.

        On redirect examination, Dr. Bahner clarified that between November 30 and
December 5, the victim gained “a few ounces” and another “few ounces” between December
5 and December 13. He agreed the victim lost weight by December 19. He said OI was a
genetic disease and did not disappear with age. He said a metabolic bone disease, such as
rickets, was diagnosed by a calcium test and by x-rays.

       On recross-examination, Dr. Bahner testified that scurvy was also a metabolic disease.
He said rickets did not manifest in an x-ray initially, although a child might lose bone
mineralization. He agreed that lost bone mineralization made children susceptible to bone
fractures. He agreed that OI was not always visible on an x-ray. He agreed that a fiberglass
test analyzing the skin and DNA genetic tests determined the presence of OI. Although he
did not know the statistics, he accepted counsel’s statistic that the tests were between eighty
and eighty-five percent accurate.

        Dr. Richard Heller, an expert in pediatric radiology, testified that the victim underwent
skeletal surveys on December 27, 2006, and January 12, 2007, that a skeletal survey was an
x-ray of all the bones in the body, including the skull, chest, spine, pelvis, arms, and legs, and
that the survey was used for children under the age of one. He said the December 27 survey
showed a healing bone fracture on the right femur, a second small “fragment” on the femur,
and a fracture on the right tibia. He said that these fractures were only caused by jerking,
twisting, or holding down a child and that these fractures were only caused by child abuse.
He said that the January 12 survey showed that one of the fractures on the femur had healed
completely and that the second femur fracture and the tibia fracture had begun to heal. He
concluded that based on the different stages of healing, the fractures occurred at different
times and that the victim’s right leg was jerked multiple times. He said that broken bones
healed at different rates and that the healed fracture on the right femur probably took three
to four weeks to heal, although he conceded that determining healing time was imprecise.

       Dr. Heller testified that based on the December 27 survey, the victim had two
fractures on his left femur caused by pulling, twisting, or shaking the victim. He could not
determine when the fractures occurred. He said that the January 12 survey showed that the
fractures on the femur had healed and that the irregularity on the tibia was not a fracture. He

                                              -13-
said the fracture on the lower end of the femur probably occurred three to four weeks earlier.

       Dr. Heller testified that the December 27 survey showed a pelvic fracture at the hip
joint and that the injury could only have been caused by a “direct blow.” He could not
determine when the fracture occurred but said it was possible the fracture occurred two
weeks before the December 27 x-ray. He said the January 12 survey showed the same
fracture in the healing process. He said that the pelvic fracture was caused by child abuse
because there was no history of a car accident or something falling on the victim’s pelvis.

        Dr. Heller testified that the December 27 survey of the victim’s right humerus, or
upper arm, showed no fractures and a normal bone density and that the January 12 survey
showed a healing fracture. He could not determine if the fracture occurred after the
December 27 survey or if the fracture was simply not visible on the x-ray. He said he
thought “nonaccidental trauma” caused the fracture, such as a “direct blow.” He concluded
that all the fractures fit the theory of child abuse and that the fracture was two to four weeks
old. When asked if it was possible the victim received the fracture in the hospital as a result
of treatment on December 25, he stated that babies have IV needles inserted frequently and
that the procedure did not result in bone fractures.

        Dr. Heller testified that based on the x-rays from December 14 to January 12, he
concluded that the victim’s bones were normal and not susceptible to fractures. He excluded
OI as the cause of the victim’s fractures because the victim did not fit the profile for the
disease. He stated that the disease persisted throughout life and that the victim would have
continued to suffer broken bones. He said the victim did not have a metabolic bone disorder,
such as rickets or scurvy, related to malnutrition. He agreed rickets and scurvy were related
to calcium, vitamin C, and vitamin D deficiencies. He said the victim’s fractures were
indicative of child abuse, not malnutrition or brittle bones. He said it was easy to diagnose
rickets based on fracture shapes and the thickness of the cartilage plate. He concluded that
feeding intolerance dating from the victim’s birth did not cause the fractures.

       Dr. Heller testified that the x-ray surveys showed fractures to nine of the victim’s right
ribs and fractures to five left ribs. He said the fractures on the right ribs were caused by
squeezing the rib cage. He said the fractures were near the backbone and close to the spine,
which showed the injuries were intentionally inflicted and specific for child abuse because
the victim was not old enough to walk and bump into objects. He concluded that the
fractures occurred three to four weeks earlier. He concluded that the fractures occurred after
December 14, 15 and 18, but before the December 25 x-ray. He said the January 12 x-ray
showed the rib fractures in different stages of healing.




                                              -14-
        Dr. Heller testified that he concluded there were three different age groups of rib
fractures based on his review of the x-rays. He concluded that the rib fractures were the
result of nonaccidental trauma and could not have been inflicted by a lumbar puncture or by
inserting an IV needle. He stated that infant bones were more pliable than adult bones and
moved when struck. He said cardiopulmonary resuscitation (CPR) did not cause the rib
fractures.

        On cross-examination, Dr. Heller testified that although past research showed a
concern for CPR causing rib fractures in infants, more recent research showed this was false.
He agreed that one study on the impact of CPR on infant bones showed that eight out of
seventy infants had rib fractures. The article stated that of the eight cases showing rib
fractures, the number of fractures were as many as ten per infant. The article showed that
the “parietal pleura” of the rib cage was removed during the autopsies and that without such
removal, the fractures might not have been identified. Dr. Heller stated that rib fractures
associated with child abuse were found in different locations than found in the article. He
conceded, though, that the victim had healing rib fractures consistent with the fractures in
the article on four right ribs and three left ribs.

       Dr. Heller testified that he did not review the victim’s medical records and that he
would dispute any test results showing the victim suffered from OI or vitamin D or C
deficiencies. He said the laboratory tests were “wasteful” because the x-rays spoke for
themselves. He said that rickets showed a progressive change in x-rays during the early
development stage. He denied OI could be detected by an x-ray at any time and said rickets
was visible on an x-ray twenty-eight days after birth. He concluded that the victim did not
have OI and stated that he did not know the amount of pressure required to cause the rib
fractures near the victim’s spine. He said, though, that symmetrical pressure applied to the
front and the back by the thumbs and fingers caused the victim’s rib fractures near the spine.
He agreed that failure to perform x-rays before and after a medical procedure prevented
determining if the procedure caused fractures.

        Dr. Heller testified that he did not know who inflicted the blow causing the right arm
fracture. He said that he did not know if a bruise would appear from a direct blow causing
the arm or rib fractures. He agreed that the right arm fracture could have occurred on
December 14, 15, 16, 17, or 18 and that he could not determine if the callus marking on the
left arm was a fracture. He agreed the left and right femur fractures, the tibia fracture, and
the left rib fractures could have occurred on December 14, 15, 16, 17, or 18. He did not
know of any genetic disorders that caused pubic bone fractures. On redirect examination,
Dr. Heller testified that for an infant the victim’s size and age, it took about six to eight
weeks for a rib fracture to heal. On recross-examination, Dr. Heller stated that the six-to-



                                             -15-
eight-week range was a generalization and that it was possible that the victim’s fractures took
four to five weeks to heal.

        Dr. Christopher Greeley, an expert in the field of pediatrics and child abuse, testified
that he consulted with the victim’s attending physician and Dr. Heller on December 28, 2006.
He said that he reviewed the victim’s chart and x-rays, examined the victim, and concluded
that the victim had multiple fractures that were inflicted by child abuse. He said that the
January 12 x-rays showed three new rib fractures and a fracture to the victim’s arm. He said
the new fractures did not change his conclusion that the fractures resulted from abuse. He
said that the victim’s not receiving new fractures since his release from the hospital
supported his conclusion of abuse and that the victim did not have a genetic bone disease.

        Dr. Greeley testified that he considered genetic bone diseases and that the fracture
patterns and the number of fractures did not support a conclusion of a bone disease or
warrant genetic testing. He said the victim did not have symptoms of genetic bone disorders
or nutritional bone disorders, such as scurvy, OI, or rickets. He said that the victim’s x-rays
were inconsistent with rickets and that the victim’s feeding difficulties did not contribute to
the fractures. He said that although the victim had difficulty feeding and keeping down food,
the victim’s body still absorbed enough calcium and vitamin D to heal the fractures.

        Dr. Greeley testified that the medical procedures performed on December 14 and 18
did not contribute to the bone fractures and that although there were a couple of studies
showing CPR caused rib fractures close to the spine, there were no studies showing CPR
caused those fractures in infants. He said that pelvic bone fractures in children were rare
because they resulted solely from trauma and that the victim had not received trauma to the
pelvis, which led him to conclude that the victim’s pelvic fracture was caused by child abuse.
He said the arm fracture was most likely caused by abuse because the victim was not mobile
at the time. He stated that rib fractures generally showed signs of healing within five to ten
days and that “definite healing” was seen within two to three weeks. He agreed rib fractures
healed completely within six to eight weeks and said visible bruising on infants was
uncommon, even in cases of abuse.

        Dr. Greeley testified that the victim felt pain as a result of the fractures and that as a
result of the pain, the victim cried, was fussy, was hard to feed, did not sleep well, and could
have been erroneously diagnosed with colic or formula intolerance. He stated that although
the treating physician at Vanderbilt concluded that the victim had pneumonia on December
14, he believed that the blood in the mucous came from a buildup of blood in the victim’s
chest. He said that the blood could have resulted from squeezing the victim, which caused
a bleeding rib or a bleeding lung caused by injury.



                                               -16-
        On cross-examination, Dr. Greeley testified that he could not state to a reasonable
degree of medical certainty when the rib fractures occurred. He denied, though, that the
fractures could have been inflicted after the victim was admitted to the hospital. He said that
although the fractures were not visible on the x-ray, this did not mean the fractures had not
occurred. He said he could not state to a reasonable degree of medical certainty that the
victim’s right arm was fractured on December 27, 2006. He said that although the amount
of force required to inflict the victim’s fractures was unknown, more than “routine care” was
required. He said that the medical procedures performed on the victim, including a
thoracentesis, a lumbar puncture, and a catheterization, were not routine handling. He said
that one method to determine if these procedures resulted in bone fractures was to take a
series of x-rays dating from birth to two weeks after the procedures. He said that without a
series of x-rays, it was impossible for a parent to establish they did not abuse the child.

       Dr. Greeley testified that he excluded OI as a cause for the fractures because there was
no bowing of the leg bones, “wormian bones,” or blueness of the sclera, although he agreed
these symptoms were not always visible on an x-ray. He agreed OI was not always visible
on an x-ray. He said that a vitamin D deficiency was a symptom of rickets, that rickets
progressed over time, and that rickets made bones weak. He said Vanderbilt did not perform
a vitamin D test. He said that a vitamin C deficiency was associated with scurvy and that
Vanderbilt did not test for it. He said that a calcium test was performed on January 10, 2007.
He said that bones needed calcium, phosphorous, and vitamin D to stay healthy and that
without these minerals bones lost density. He stated that if the victim had lost twenty percent
of his mineral bone density, the victim might be more susceptible to bone fractures and that
it was unknown at which point the bone loss became visible.

       Dr. Greeley testified that the healed rib fractures and the healing leg fractures could
have occurred at the same time and that the healing rib and leg fractures could have occurred
at the same time. He concluded to a reasonable degree of medical certainty that all the
victim’s fractures occurred on three occasions. He said the strength of an adult was required
to cause the victim’s rib fractures but that a child could inflict the injuries depending on his
or her size, strength, and coordination.

       Dr. Greeley testified that a small cut on the victim’s mouth would not be unusual with
having to suction the victim’s mouth due to feeding difficulties and mucous formation. He
agreed that although the bone fractures caused pain, they were not serious injuries that
jeopardized the victim’s life. He said the medical records showed that after the December
15, 2006 medical procedures, the victim had a “relatively high” pain level. He said that
about two hours later, the victim showed no signs of pain and that the victim showed no signs
of pain on December 16, 17, 18, 22, 23, 26, or 27. He did not recall the medical records



                                              -17-
showing that the victim was in discomfort when he was admitted on December 14, 22, and
25.

        On redirect examination, Dr. Greeley testified that if the fractures had occurred while
the victim was in the hospital, he expected to see the victim experiencing pain. He said the
blood and fluid in the lungs could have been caused by “compressive forces” that caused the
rib fractures. He said the medical records showed the victim gained about 2.2 pounds while
in the hospital from December 25 to January 12. On recross-examination, Dr. Greeley
testified that he could not state to a reasonable degree of medical certainty that the fluid and
blood in the victim’s lungs were caused by the rib fractures. He said that the victim gained
weight while in the hospital because of the feeding tube.

       Dr. Amy McMaster, an expert in forensic pathology, testified that she concluded the
victim’s bone fractures were caused by nonaccidental trauma. She concluded that the rib
fractures were caused by “adult size hands” squeezing the victim’s chest and torso area. She
said she had no information supporting a conclusion that the fractures were accidental. She
concluded that the victim received fractures on three occasions because of the various stages
of healing. She said the fractures to the victim’s leg could have been inflicted by shaking or
jerking the victim’s leg. She did not know what caused the pelvic bone fracture and said the
arm fracture could have been caused by a “direct blow” or by jerking the arm. She said that
she had only seen one infant rib fracture caused by CPR and that in her experience, lumbar
punctures, thoracentesis, IV needles, and catheters did not cause bone fractures. She said that
she saw no evidence of a bone disorder and that the victim’s inability to gain weight did not
support a conclusion that he was susceptible to fractures.

       On cross-examination, Dr. McMaster testified that the right arm fracture could have
occurred between December 14 and 18 and that interpretation of the healing stage was
subjective. She agreed that an x-ray taken immediately after a medical procedure that did not
show a fracture did not mean a fracture did not occur. She said that it was “not impossible”
for CPR to cause the type of rib fractures received by the victim and that the victim’s feeding
problems did not cause the fractures.

       Metropolitan Police Detective Selene Julia testified that she worked in the youth
services division and that she had received training related to injury types and their causes.
She said that on December 27, 2006, she went to Vanderbilt and spoke to the victim’s nurse,
who said the victim had about ten healing rib fractures. She said that she talked to the
Defendant on December 27 and that the Defendant told her the victim did not attend daycare.
The Defendant told her that she did not use a babysitter and that she only left the victim alone
with Mr. Smith for five minutes to go to the grocery store. She said this was the only time



                                              -18-
the Defendant left the victim with someone in December. The Defendant told her that she
and Mr. Smith lived together but did not mentioned Mr. Smith’s roommates.

        Detective Julia testified that she asked the Defendant about the victim’s medical
history. The Defendant said that the victim had difficulty feeding since birth and that she
took the victim to the pediatrician several times and to the hospital for breathing problems
before she moved into Mr. Smith’s home. She said the Defendant did not mention any other
trips to the hospital. The Defendant stated that she did not know how the victim’s injuries
occurred but that the doctors held down the victim. She said that Mrs. Pursell was in the
room when she talked to the Defendant on December 27 and that Mrs. Pursell asked if a bone
density test had been performed. She said the Defendant did not disagree with her mother.

        Detective Julia testified that the Defendant told her that Mr. Smith handled the victim
with care and that the Defendant did not blame anyone for the victim’s injuries. She said the
Defendant demonstrated that she picked up the victim “cradling” him. She said that the
Defendant and Mrs. Pursell mentioned the hospital staff’s lying on top of the victim to draw
blood. The Defendant did not mention the lumbar puncture, the thoracentesis, or the medical
staff’s mistreating the victim. She said that the Defendant told her that she did not breast-
feed the victim and that the victim’s formula had been changed multiple times. She said that
although the Defendant did not cry during the December 27 interview, she answered her
questions.

        Detective Julia testified that she interviewed Mr. Smith on December 27, 2006, at his
home and that Mr. Smith stated that the Defendant was the victim’s primary caregiver. Mr.
Smith stated that he had two roommates previously, whom Detective Julia interviewed. She
said that she interviewed Mrs. Pursell, who gave no information suggesting that anyone other
than the Defendant was the victim’s primary caregiver.

        On cross-examination, Detective Julia testified that although this was not her first
child abuse investigation, she had been assigned to the youth services division for only three
or four months. She agreed she received her training over time, rather than before being
assigned to the division. She said that she spoke to a nurse at Vanderbilt based on the
Defendant’s stating the fractures might have been caused by the medical staff but that she
did not know if the nurse treated the victim. She stated that when she arrived at Vanderbilt
on December 27, 2006, she spoke to the victim’s treating nurse, Jennie Massey Holt, who
stated that the doctors thought the victim had pneumonia, that a chest x-ray was ordered to
confirm pneumonia, that the x-ray showed rib fractures, and that a full skeletal survey was
ordered.




                                             -19-
        Detective Julia testified that when she spoke to the Defendant on December 27, 2006,
the Defendant welcomed her presence and questions and gave direct answers to every
question. She did not ask the Defendant if anyone other than the Defendant and Mr. Smith
lived in Mr. Smith’s home. She agreed she ended the interview and asked all the questions
she wanted the Defendant to answer. She agreed she did not ask the Defendant about Mr.
Smith’s caregiving responsibilities. She agreed she only asked the Defendant about leaving
the victim with someone else while she left the home, not while the Defendant was in another
part of the home or taking a shower. She said that Mr. Smith cared for the victim while the
Defendant slept at night and that other people were around the victim without the
Defendant’s being present. She denied investigating how long it took to cause the fractures.

       Detective Julia testified that although the victim had been treated at Vanderbilt five
times, she did not speak to any medical staff who treated the victim before December 27.
She agreed that while the Defendant was in the room, the Defendant’s father mentioned the
possibility that lying on top of the victim during medical treatment and the victim’s formula
intolerance caused the fractures. She did not ask the treating medical staff about their
handling the victim.

       Detective Julia testified that she sent Metropolitan Police Sergeant Robert Norton an
email expressing concern that the victim’s injuries might have been related to a medical
condition because she was told the victim had more fractures. She denied talking to the
radiologist who found the fractures or any of the victim’s treating physicians. She agreed
that the Defendant had the most access to the victim and said that the Defendant “should
have known if something happened in her house while she was there” regardless if she slept,
took a shower, or used the bathroom.

        On redirect examination, Detective Julia testified that during her second interview of
the Defendant, the Defendant was told additional leg fractures were found and that the
Defendant had no reaction. She said that she had never investigated a case which involved
an infant’s bone fracture caused by medical procedures. On recross-examination, she stated
that although the Defendant would have known the victim had these injuries, she agreed the
Defendant was a new mother, took the victim to the hospital six times, and contacted the
victim’s pediatrician several times.

        DCS Case Manager Jeanea Cochron Norman testified that she investigated the
victim’s case, that she interviewed the Defendant with Detective Julia on December 27,
2006, and that after the interview, she restricted the Defendant’s access to the victim. She
identified a juvenile court order that allowed the Defendant access to the victim because it
was in the victim’s best interest. On cross-examination, Ms. Norman testified that although



                                             -20-
she filed a petition in juvenile court alleging the victim suffered serious physical abuse by
the Defendant, the DCS attorney terminated the proceedings.

        Tom Pursell, the Defendant’s father, testified for the defense that the victim had
difficulty eating from birth. He described the victim’s inability to keep down formula and
said the Defendant continuously called the pediatrician, who changed the formula several
times. He said the Defendant followed the doctor’s instructions and was protective of the
victim.

       Mr. Pursell testified that after the Defendant and the victim moved into Mr. Smith’s
home, he saw the Defendant and victim regularly. He said he noticed that the victim lost
weight because of the feeding problems and that the Defendant cried and called the doctor.
He said the Defendant became frustrated that the doctors did not find a solution. He testified
similarly to other witnesses about the medical staff’s holding down the victim to insert IV
needles and during other medical procedures. He said that the Defendant stood at the edge
of the bed while the medical staff inserted the IV needle and catheter and that she cried.

        Mr. Pursell testified that he learned of the fractures from the Defendant and that she
cried as she told him the news. He recalled speaking to Detective Julia shortly after learning
of the fractures and said he could not follow the conversation because he was shocked that
the victim had broken bones. He said he never saw the Defendant act inappropriately with
the victim or cuts and bruises on the victim. He said that the family was asked to leave the
room before the fluid was removed from the victim’s lungs and that the Defendant “was
close to hysterical.”

        On cross-examination, Mr. Pursell testified that the conversation with Detective Julia
at the hospital was pleasant and that she was polite and did not accuse anyone of child abuse.
He recalled that although the Defendant did not cry during the conversation with Detective
Julia, the Defendant was upset. He stated that although Dr. Hughes said the fractures were
intentionally inflicted, he did not know if Dr. Hughes accused the Defendant. He said Dr.
Hughes only asked if the Defendant knew how the fractures occurred. He said that although
he knew the Defendant took the victim to Summit on December 14, 2006, because of his
vomiting, he did not know the vomit had coffee-colored phlegm. He said that he did not
believe the victim was abused by the Defendant or any other family member and that he
believed Vanderbilt staff caused the injuries.

       On redirect examination, Mr. Pursell testified that he told Detective Julia that if he
thought the Defendant had abused the victim, he would have reported the Defendant to the
police. He said he had daily contact with the victim since the victim’s birth and regular
contact with the Defendant in November and December 2006. He said he would have known

                                             -21-
if the Defendant abused the victim. He said that the victim received a lot of attention from
the Defendant and various family members.

        Dr. Suzanne Tropez-Sims, an expert in pediatrics and child abuse, testified for the
defense that restraining an infant to perform a thoracentesis and to insert an IV needle or a
catheter was common because infants were not sedated for these procedures. With regard
to the thoracentesis, the victim’s records did not note whether he was restrained. She said
the victim’s severe gastroesophageal reflux disease caused the victim’s vomiting. She said
that because a vitamin D test was not performed on the victim, she could not determine
whether the victim had rickets. She said that a lack of vitamin D made bones susceptible to
fractures and that once adequate levels of vitamin D were reached, the susceptibility to
fractures disappeared. With regard to OI, she said that not all infants had all symptoms. She
said that wormian bones and blueness of the sclera did not always appear in OI patients, that
OI did not always show on an x-ray, and that no single definitive test existed to diagnose OI.

       Dr. Tropez-Sims testified that because the victim’s January 12, 2007 x-ray showed
fractures not seen on the December 27, 2006 x-ray, she considered causes other than abuse.
She said that although she had not seen bone fractures caused by medical procedures, they
were possible. She said that to determine if a procedure caused a bone fracture, a series of
x-rays needed to be taken before and after a procedure but that the level of radiation exposure
prevented the x-ray series. She said studies showed that some children suffer broken ribs at
birth.

        On cross-examination, Dr. Tropez-Sims testified that she did not review the victim’s
x-rays. She said that the victim’s fractures had two possible causes, abuse and trauma, and
that she disagreed the fractures were caused exclusively by abuse. She agreed that in the
absence of trauma, the inability to explain how a fracture occurred usually resulted in a
diagnosis of abuse. She said mild cases of OI disappeared after one year. She agreed this
was called temporary brittle bone disease. She said that because Vanderbilt did not perform
the test to confirm or exclude OI, she could not conclude that the victim did not have OI at
the time the fractures occurred. She said that the rib fractures found on the December 25 x-
ray could not have been inflicted by the medical procedures performed between December
14 and 18. She agreed that without an explanation about how the fractures occurred, the
number of fractures alone supported a diagnosis of nonaccidental injury. She agreed the
caregiver should have known how the injuries occurred.

         On redirect examination, Dr. Tropez-Sims testified that if one person in a household
was the abuser, another person living there did not always know of the abuse. She said that
it was possible the symptoms of the fractures could have been mistaken for something else
if a child vomited frequently, did not cry excessively, was taken to the hospital several times,

                                              -22-
and showed no signs of pain. She agreed a sick infant who vomited frequently might respond
differently to fractures as compared to a healthy infant. She said that if the victim had been
shaken, she would have expected to see a significant amount of retinal hemorrhaging based
on the number of fractured bones.

        On recross-examination, Dr. Tropez-Sims testified that she had interviewed
individuals suspected of child abuse and that most denied knowing how the injuries occurred.
On further redirect examination, she stated that if a suspected abuser stated he or she did not
know how the injuries occurred, the question of abuse depended on whether the suspected
abuser was believed. She said there was no way to prove the person truly did not know about
the injuries.

        Dr. David Watts, a radiologist at Summit, testified for the defense that he reviewed
the victim’s December 14, 2006 x-ray taken at Summit and that he concluded the victim had
pneumonia. He did not find any fractures. On cross-examination, he stated that he only
reviewed the December 14 x-ray from Summit. He said it was possible a fracture was there
but not visible. He said the fluid in the victim’s lungs could have been caused by trauma.
He said that the December 25 x-ray showed rib fractures.

        Dr. Daniel Starnes, an expert in radiology, testified for the defense that it was common
for radiologists to have differences of opinions in the interpretations of x-rays. He said that
based on his interpretation, the arm fracture occurred sometime between December 27, 2006,
and January 12, 2007, and that the tibia x-rays were inconclusive. He said that the amount
of force necessary to fracture an infant bone varied and that his training taught him to pay
attention to an infant’s pelvis during a physical exam because a dislocation of the pelvic bone
could occur.

        Dr. Starnes testified that a thoracentesis could cause posterior rib fractures because
an infant must be held upright during the procedure and because pressure was applied from
the front to the back of the chest. He said recent studies showed that applying pressure from
the front to back, such as during CPR, caused microfractures. He agreed that applying
pressure from the back and downward to an infant who is lying on his or her side could cause
rib fractures. He stated that the victim’s pelvic fracture could have resulted from a direct
blow or from holding the victim to insert a catheter. He said x-rays did not show the intent
or the manner in which the fractures were inflicted. He disagreed that child abuse was the
only explanation for the victim’s fractures.

       On cross-examination, Dr. Starnes testified that bones with a significant amount of
bone density loss might look normal on an x-ray and that he could not conclude the victim
did not have OI. He said that although the x-ray did not show definitive evidence of OI,

                                              -23-
malnourishment made the victim predisposed to OI and to having fragile bones. He believed
fragile bones were a likely cause of the victim’s fractures. He denied speaking with any of
the treating physicians. Although he agreed the medical literature did not report a link
between medical procedures and bone fractures, he said the literature showed fractures
occurring in the “healthcare environment.” He denied that fractures caused by hospital staff
presumed the presence of fragile bones because some studies showed generally patients with
pneumonia received rib fractures under routine care and handling. He agreed he did not
know of any medical study lending support to temporary brittle bone disease.

       Upon this evidence, the jury found the Defendant guilty of three counts of aggravated
child abuse. The trial court sentenced the Defendant to three concurrent terms of fifteen
years’ confinement in the Tennessee Department of Correction. This appeal followed.

                                               I

       The Defendant contends that the evidence is insufficient to support her convictions
because the evidence did not establish that the victim was abused or that she inflicted the
victim’s injuries. The State contends that the evidence is sufficient. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
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). This means that we may not reweigh
the evidence but must presume that the trier of fact has resolved all conflicts in the testimony
and drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). “The standard
of review ‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson,
379 S.W.3d 265, 275 (Tenn. 2009)). “[I]dentity of the perpetrator is an essential element of
any crime” and may be “established through circumstantial evidence alone.” State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn.
1975)).




                                              -24-
       In relevant part,

            [a] person commits the offense of aggravated child abuse . . . who
       commits the offense of child abuse, as defined in § 39-15-401(a) . . . and:

       (1)    The act of abuse . . . results in serious bodily injury to the child;

       ...

       (b)    A violation of this section is a Class B felony; provided, however, that,
              if the abused . . . child is eight (8) years of age or less, . . . the penalty
              is a Class A felony.

T.C.A. § 39-15-402(a)(1), (b) (2006) (amended 2009, 2011, 2012).

       “Any person who knowingly, other than by accidental means, treats a child under
eighteen (18) years of age in such a manner as to inflict injury” commits a form of child
abuse. Id. § 39-15-401(a) (2010) (amended 2012). A person acts “knowingly”

       with respect to the conduct or to circumstances surrounding the conduct
       when the person is aware of the nature of the conduct or that the
       circumstances exist. A person acts knowingly with respect to a result
       of the person’s conduct when the person is aware that the conduct is
       reasonably certain to cause the result.

Id. §§ 39-11-106(a)(20); -302(b) (2010) (amended 2012).

       The jury’s verdict shows that it rejected the defendant’s expert witnesses’ conclusions
and credited the State’s expert witnesses’ conclusions that the victim’s bone fractures were
the result of nonaccidental injury and child abuse. Although the defendant’s experts were
unable to state with a reasonable degree of medical certainty that the injuries were not caused
by the medical procedures performed on the victim at Vanderbilt, Drs. Heller, Greeley, and
McMaster concluded otherwise. Each doctor stated that the procedures performed on the
victim were conducted daily on infants across the country and that no medical evidence
showed the procedures resulted in bone fractures. Dr. Heller testified that the victim’s bones
were normal and not susceptible to fractures and that the victim did not have a genetic bone
disease, such as rickets or OI, that would render the victim’s bones brittle.




                                               -25-
       Dr. Heller stated that the type, location, and various rates of healing led him to
conclude that the fractures were caused by direct blows and squeezing of the ribs on at least
three occasions. Dr. Greeley and Dr. McMaster concluded the fractures were inflicted on
three different occasions. Dr. Greeley concluded that the victim’s fractures were the result
of child abuse and that the victim’s lack of new fractures after being released from the
hospital in January 2007 supported that conclusion. Dr. Greeley considered and excluded
genetic bone disorders and vitamin deficiencies and concluded the victim’s feeding
difficulties did not contribute to the fractures. Dr. McMaster concluded that the victim’s rib
fractures were caused by squeezing the victim’s chest and torso with adult-size hands and
that his extremity fractures were caused by jerking or shaking. Dr. Heller gave similar
testimony. Although the evidence showed that dating the victim’s fracture was an
approximation rather than an exact mathematical calculation, Dr. Greeley testified that the
fractures could not have been inflicted after the victim’s December 27, 2006 hospital
admission. The evidence showed that bone fractures might be present but invisible on an x-
ray.

          The record shows that although none of the State’s witnesses saw the Defendant
inflict the victim’s injuries or otherwise mistreat the victim, the Defendant was the victim’s
primary caregiver and did not use the services of a babysitter. Although the Defendant left
the victim in Mrs. Pursell’s care once in the two weeks after the victim’s birth, Mrs. Pursell
denied harming the victim. The expert medical testimony dated the victim’s fractures as
occurring after the Defendant and the victim moved into Mr. Smith’s home in early
December 2006.

        After the Defendant and the victim moved into Mr. Smith’s home, the Defendant
continued to be the victim’s primary caregiver while Mr. Smith worked during the day.
Although Mr. Smith helped the Defendant care for the victim while he was home, Mr. Smith
denied inflicting the victim’s injuries. Mr. Burchett, Mr. Smith’s roommate, testified that he
was home during the day, that he helped care for the victim when his help was needed, and
that the Defendant did not use babysitters. Although Mr. Burchett fed the victim once while
the Defendant took a shower, he denied inflicting the victim’s injuries. We conclude that a
rational jury could conclude beyond a reasonable doubt that the Defendant inflicted the
victim’s injuries.

       At the time of the offenses were committed, serious bodily injury was defined as
bodily injury involving a substantial risk of death, protracted unconsciousness, extreme
physical pain, protracted or obvious disfigurement, or protracted loss or substantial
impairment of a function of a bodily member, organ, or mental faculty. T.C.A. § 39-11-
106(34)(A)-(E) (2006) (amended 2009). In 2009, the Tennessee General Assembly amended
the definition of serious bodily injury to include a broken bone of child who is eights years

                                             -26-
old or younger. Id. § 39-11-106(34)(F) (2010). Likewise, the legislature amended the
aggravated child abuse and aggravated child neglect or endangerment statute to define
serious bodily injury to a child. Id. § 39-15-402(d) (2010). Serious bodily injury against a
child is now defined, in relevant part, as “a fracture of any bone.” Id. Although the amended
statute defines serious bodily injury against a child to include any bone fracture, we do not
conclude that the previous law precluded a finding of serious bodily injury on the basis of
bone fractures.

       The victim suffered bone fractures to his femurs, tibia, pelvis, upper right arm, and
ribs over the course of three or four weeks. The victim suffered approximately fourteen rib
fractures. These injuries were inflicted during the first six weeks of the victim’s life. The
expert testimony established that the fractures were caused by direct blows or some form of
trauma to the victim’s pelvis; jerking, yanking, or twisting the victim’s arms and legs; and
squeezing or shaking the victim’s abdominal area. Although no evidence existed that the
injuries jeopardized the victim’s life, the injuries caused the victim extensive and protracted
pain for the first few weeks of his life. The victim was born in November and suffered bone
fractures the following month. We conclude that the victim suffered serious bodily injury
and that the evidence is sufficient to sustain the Defendant’s convictions. The Defendant is
not entitled to relief.

                                              II

       The Defendant contends that the trial court erred by not allowing her to present
evidence that she consented to a polygraph examination. She argues that her right to present
a complete defense was denied because she was prevented from establishing that she “was
not evasive” during the police investigation. The State contends that the trial court did not
err and argues that the Defendant was not denied the right to present a defense. We agree
with the State.

       Before the trial, the Defendant requested that she be allowed to present evidence that
during the police interview, she was asked if she was willing to “take a polygraph.” Counsel
argued that the police’s request and the Defendant’s willingness to take the examination were
part of the Defendant’s statement and should be introduced in its entirety. Counsel also
argued that the Defendant’s willingness to take the examination after the police requested
one showed that the Defendant did not make a “self-serving request.” The trial court denied
the request, finding evidence of polygraph examinations inadmissible. The court ordered the
references to the polygraph examination redacted from the Defendant’s statement and
prohibited any mentioning of it.




                                             -27-
        Our supreme court has stated that polygraph evidence is inadmissible. State v. Sexton,
368 S.W.3d 371, 409 (Tenn. 2012) (citing State v. Damron, 151 S.W.3d 510, 515-16 (Tenn.
2004)). Polygraph examination results are “inherently unreliable and not admissible to
establish the defendant’s guilt . . . [or] to establish residual doubt about the defendant’s
guilt.” State v. Hartman, 42 S.W.3d 44, 60 (Tenn. 2001). Likewise, “‘testimony regarding
a [d]efendant’s willingness or refusal to submit to a polygraph examination is not
admissible.’” Sexton, 368 S.W.3d at 409 (quoting State v. Stephenson, 195 S.W.3d 574, 599
(Tenn. 2006) (appendix) (quoting State v. Pierce, 138 S.W.3d 820, 826 (Tenn. 2004))); see
State v. Campbell, 904 S.W.2d 608, 615 (Tenn. Crim. App. 1995) (“The fact that an accused
either offered to take, took or refused to take a polygraph examination cannot be admitted
as evidence.”). We conclude that the trial court did not err by excluding evidence that the
police requested and the Defendant consented to undergo a polygraph examination.

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.




                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -28-
