                                                                                           08/21/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 April 11, 2017 Session

                 STATE OF TENNESSEE v. ERROL JOHNSON

                  Appeal from the Criminal Court for Shelby County
                   No. 14-00889       J. Robert Carter, Jr., Judge
                      ___________________________________

                           No. W2016-00839-CCA-R3-CD
                       ___________________________________


The defendant, Errol Johnson, was convicted of two counts of aggravated child neglect, a
Class A felony, and two counts of criminally negligent homicide, a Class E felony. The
trial court merged the two aggravated child neglect convictions and sentenced the
defendant as a violent offender to twenty-two years in the Department of Correction. The
trial court also merged the defendant’s convictions for criminally negligent homicide and
sentenced him to two years. The defendant’s sentences were ordered to be served
concurrently for an effective sentence of twenty-two years in the Department of
Correction. On appeal, the defendant argues that the evidence is insufficient to support
his convictions for aggravated child neglect and that the trial court imposed an excessive
sentence. We conclude that the evidence is sufficient to sustain the jury’s verdict and
affirm the judgments of the trial court. However, because aggravated child neglect is not
an enumerated offense included in Tennessee Code Annotated § 40-35-501(i)(2), the trial
court erred in its applying the statute and sentencing the defendant as a violent offender at
100% release eligibility. Therefore, we remand the matter for a new sentencing hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                   in Part and Reversed in Part; Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
TIMOTHY L. EASTER, JJ., joined.

Stephen C. Bush, Shelby County Public Defender; Harry E. Sayle, III, Assistant Public
Defender (on appeal); and Nigel Lewis, Kathy Kent, and Erim Sarinoglu, Assistant
Public Defenders (at trial), for the appellant, Errol Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton-Bush
and Abby Wallace, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

                              Facts and Procedural History

       On November 24, 2012, the victim, a 12-year-old girl, died as a result of severe
neglect and lack of care. As a result of her death, the State charged the defendant, the
victim’s father; the victim’s mother; and the victim’s home healthcare worker, Chasara
Jones, each with two counts of aggravated child neglect and two counts of first degree
murder. The proof presented at trial is summarized as follows:

       On November 24, 2012, Officer Robert Redditt of the Millington Police
Department responded to a 911 medical call concerning an “unresponsive or not
breathing juvenile female” at 7684 Arapaho, Millington, Tennessee. According to
Officer Redditt, he entered the home through the carport and immediately noticed a
“horrific odor. It smelled like death to me.” Officer Redditt testified that the odor grew
stronger as he moved deeper into the house and closer to the victim’s room.

        As he entered the victim’s bedroom, Officer Redditt found the victim sitting on the
floor leaning against the bed, and her mother attempting to perform CPR. Officer Redditt
noted the defendant was also in the room and was very upset and screaming at his wife.
Officer Redditt instructed the mother to lay the victim flat on the floor so CPR could be
performed properly. When she did, Officer Redditt noticed numerous sores on the
victim’s legs. Once the medical team arrived, Officer Redditt left the victim’s bedroom
and escorted the defendant to the carport.

       Shelby County Sheriff’s Deputy Darryl Blake testified he was employed by the
Millington Police Department in 2012 and responded to the 911 call concerning an
unresponsive juvenile on November 24, 2012. Deputy Blake testified that the “smell in
the house took your breath away,” and, as he walked to the victim’s room, “the worse the
smell got.” Deputy Blake also noted the house was unorganized and the kitchen was full
of dirty dishes. When Deputy Blake entered the victim’s bedroom, he noticed she had
thick bandages on both feet. He also noticed fly strips hanging all around her room that
were full of flies. Deputy Blake testified “the floor was very, very sticky and just
brown.” He stated that “the white mattress was completely dark in most spots where you
could tell someone was lying.” According to Deputy Blake, the defendant was very
angry and repeatedly stated “someone was going to pay if something happened to his
baby.”

                                           -2-
       Because the defendant refused to take his wife, the victim’s mother, to the hospital
with him, Deputy Blake offered to take her. According to Deputy Blake, the defendant
said his wife could not ride with him because he would do “something” to her if
something happened to the victim. When they entered the victim’s hospital room, nurses
were cutting the bandages off her feet. According to Deputy Blake, it took the nurses
“about 10 minutes for each foot.” Deputy Blake testified that once the bandages started
coming off “maggots and everything started falling out of the bandages” and “parts of
bones from [the victim’s] feet started coming out inside the bandages.”

       Deputy Blake ran into the defendant as he was leaving the victim’s hospital room.
According to Deputy Blake, the defendant hugged him and stated, “[I] can’t believe we
let my baby die.” The defendant then immediately changed from “we” to saying “she”
and blaming the victim’s mother. Finally, the defendant told Deputy Blake, “I work so
much. I couldn’t believe this was going on. How can I know all this was going on as
much as I work?” After witnessing the victim’s injuries and speaking with the defendant,
Deputy Blake requested a detective be sent to the hospital.

       James Slough, a paramedic with the Millington Fire Department, also responded
to the 911 call. In describing the odor in the home, Mr. Slough testified the odor got
stronger as they moved towards the back of the house. The odor was a “real putrid,
rotting flesh smell.” “It smelled like a gangrenous wound. A real wretched smell.” As
he attended to the victim, Mr. Slough could not find a pulse and noted the victim was not
in good health and was not breathing. He also noticed that the victim did not have on any
clothes from the waist down and she “had blisters and bedsores on [her] inner thighs.”
Mr. Slough also testified the victim’s room was very dirty. There were stains on the floor
and the bed. The smell was horrible, and there were maggots on the floor.

       Carey Maiden, an emergency room technician with Methodist Hospital, was on
duty when the victim arrived at the hospital on November 24, 2012. Ms. Maiden, who
also worked as an EMT with the Millington Fire Department, was familiar with the
victim. On May 2, 2011, the Millington Fire Department had responded to a “general
weakness call” at the victim’s home. That day, they had to help lift the victim out of her
bed and move her to a stretcher so that she could be transported to the hospital.

       On November 24, 2012, the emergency room was notified that a 12-year-old girl
in full arrest was being transported. When the victim arrived, the staff “immediately
noticed that she was a lot larger than a normal 12-year-old.” According to Ms. Maiden,
the victim looked as if she was full grown. Ms. Maiden testified they attempted to
resuscitate the victim for almost an hour. Despite all their efforts, they were unable to
save the victim.

                                           -3-
        Ms. Maiden testified she aided in preparing the victim’s body for transport to the
medical examiner’s office. Per hospital policy, they are required to keep everything that
was on the victim’s body with her body, minus bandages and anything used to help
resuscitate her. Additionally, all of the victim’s sores and wounds needed to be
uncovered. Therefore, Ms. Maiden removed the compression boots on the victim’s feet
and began to remove the bandages underneath. As the new bandages were removed, Ms.
Maiden noticed that the new bandages had been placed over the older, dirty bandages,
meaning no one had changed the bandages or cleaned the victim’s sores in a very long
time. Additionally, Ms. Maiden discovered maggot larvae in the bandages. Ms. Maiden
testified that it took about twenty minutes per foot to remove the bandages. She even had
to change to sharper, stainless-steel scissors in order to cut the thick, hardened bandages.
As the bandages were removed, they discovered that the skin was embedded in the
bandages, the victim was missing toes on her right foot, and her bones began to fall out as
the bandages were removed. According to Ms. Maiden, there was little to no flesh on the
victim’s feet.

       Detective Dennis Brunson with the Millington Police Department was called to
the victim’s house to investigate the circumstances surrounding the victim’s death. As
part of his initial investigation, Detective Brunson spoke with the defendant. The
defendant informed Detective Brunson that the victim was sick and blamed his wife for
not caring for the victim properly. He also informed Detective Brunson that he was suing
Le Bonheur Children’s Hospital and commented, “I guess this will help my lawsuit.”

       Detective Brunson testified he could smell the “strong putrid odor associated with
death” from outside the house and that the smell was worse once he entered the house.
As he examined the victim’s bedroom, Detective Brunson noted the victim’s mattress
was heavily stained. The sheets, the mattress, and the hospital pad on the victim’s bed
were heavily soiled. He also noticed stained and soiled rags and bandages on the floor of
the victim’s room. According to Detective Brunson, the victim’s room “smelled of rotten
flesh.” Detective Brunson also found a Tylenol PM bottle and gauze packaging in the
victim’s trashcan.

       As Detective Brunson and other officers searched and inventoried the house, the
defendant, who had remained outside, ran into the house and into his room. When
Detective Brunson checked on him, the defendant stated “he wished he had went to her
when she was crying and moaning” the night before. Detective Brunson also testified
that the defendant was “very upset” when they informed the defendant the victim’s body
could not be released until the medical examiner had concluded the autopsy. According
to Detective Brunson, the defendant wanted to have the victim cremated and taken to
New Orleans. On cross-examination, Detective Brunson testified that the defendant

                                           -4-
refused to allow him to speak with his son and told him that he preferred if Detective
Brunson would not talk to his wife.

       Charlotte Jones, a victim advocate coordinator for the Memphis Child Advocacy
Center, testified that she was working for the Tennessee Department of Children’s
Services at the time of the victim’s death. According to Ms. Jones, on November 24,
2012, she received a priority one referral concerning “allegations of neglect and death”
relating to the victim. As a result of the referral, Ms. Jones went to the victim’s home
where she was immediately met by the defendant. After Ms. Jones introduced herself,
the defendant told her that he resented her being there. The defendant stated, “My
daughter has been sick for over two years and now that’s she’s dead DCS and MPD are
coming here saying we’re bad parents.” The defendant also told Ms. Jones that they were
not receiving any help and that the care of the victim was “all on his wife.” He also
informed Ms. Jones of his attempts to sue Le Bonheur Children’s Hospital and TennCare.

      Ms. Jones testified the first thing she noticed about the victim’s room was it
smelled like “rotten flesh or a dead animal” despite candles and incense burning in the
room. She also noticed the mattress and the carpet were heavily stained, and the room
was full of fly strips. Ms. Jones testified there were dead flies all over the bathroom and
bloody bandages on the floor.

       Before Ms. Jones left the house that evening, the defendant presented her with a
box containing the victim’s medical records. The defendant told Ms. Jones that the
documents in the box showed they had tried to get help for the victim, but no one would
help them. Ms. Jones testified that the defendant called her twice after she left,
requesting that the victim’s body be released so he could have her cremated. When Ms.
Jones went to check on the family the next day, no one was home.

       Agent Douglas Pate with the Tennessee Bureau of Investigation (“TBI”) testified
he was a criminal investigator in the Healthcare Fraud Division and was assigned to
investigate the victim’s death, including the home healthcare company Interim Home
Healthcare. Agent Pate testified that, as part of his investigation, he interviewed the
defendant on December 16, 2013. As the defendant talked, Agent Pate wrote out the
defendant’s statement. The defendant then reviewed Agent Pate’s notes and, after
making a few corrections, signed the statement. In his statement to Agent Pate, the
defendant claimed,

             [The victim] is my daughter with Raven Ruth. [The victim] was
       born January 31, 2000. We also have a son . . . Raven and I are not
       married. We moved to Memphis on approximately October 8, 2005[,] after
       the Katrina hurricane in Harvey, LA. I moved here first and then they came
                                           -5-
up after me. We first stayed in a hotel in Natchez, MS. We first lived in
the Magnolia Suites hotel in Millington and then to the house in Millington
on 7684 Arapaho St. We stayed there until November 25, 2012[,] the day
after I found [the victim] passed away. I moved out of the house that I
rented by December 15, 2012.

       [The victim] was fine until February 7, 2011[,] when she got sick
after we went out to eat on January 31, 2011. [The victim] ate the same
dish as me at TGI Friday’s in Bartlett. I asked them to make her dish
without shrimp, but I feel like they just took out the shrimp and that made
her sick. [The victim] was allergic to any kind of seafood. We carried [the
victim] to Le Bonheur and she stayed until February 14, 2011.

        [The victim] seemed okay when she was released, but on February
21, 2011[,] she got very sick again vomiting bile and her blood pressure
was dropping in addition to a high fever. [The victim] stayed for four to six
weeks and they were giving her medications that I did not agree with them.
They were her antibiotics and [heparin]. [The victim’s] blood clotted just
like me and [heparin] has a side effect of clotting. The doctors would not
listen to me and said they could do what they thought because she was a
minor. I have friends in the medical field who told me they did not like the
medications. [The victim] did not have toe and foot problems until she was
in the hospital, but they became swollen and blue.

       The doctors induced her into a coma twice and told us at a meeting
that she really died twice. The doctors talked about amputating her legs in
front of her upsetting [her] and all of the family. [The victim] went to one
more time, but I don’t remember when it was. The hospital forced [the
victim] out of the hospital and brought [her] and Raven home by
ambulance. My son was also sick with what appeared to be a bad [staph]
infection.

       We had transportation and home health care services for [the
victim]. Most of the time the transportation and home health workers
would pull in front of the house, but drive off without even knocking on the
door. I did not believe that until I was home one day from work. I think
the hospital provided some training on how to change [the victim’s]
dressings. I did not receive any training and the only thing I saw was
Raven watching in the hospital.



                                    -6-
              I had reported to the police when the hospital was kicking her out of
       the hospital and he said there was nothing they could do. I called TennCare
       and there was one lady that helped us get more time. [The victim] received
       home health for a year and a half, but they did not do their job. Raven
       changed her dressings the best she could, but she was never trained that I
       know about by doctors, nurses, or home health.

              The lack of proficient medical care is what caused the death of [the
       victim]. The doctors and hospital were arrogant and cocky. I challenged
       them for their care of [the victim]. Raven tried to befriend the doctors and
       nurses because she thought [the victim] would receive better treatment, but
       I wanted the best care for [the victim]. I have pictures, videos, and logs
       regarding all of this ordeal with [the victim]. I only wanted the best
       medical care for [the victim] and they were just trying to move her out or
       into an old folks home. We wanted to [meet] with the administrator and
       head doctor, but were denied and forced to meet with others that weren’t
       responsible for my child’s condition. It was a doctor in New Orleans that
       told us to stop the [heparin] and she started getting good healthy pink again.

       Karen Hess, a registered nurse, testified that at the time of the victim’s death, she
was an investigator for the State of Tennessee charged with investigating complaints filed
with health related boards. Ms. Hess stated that she was assigned to investigate the
victim’s case, specifically the home health aides that cared for the victim. According to
Ms. Hess, home health aides are certified nursing assistants and are not allowed to handle
wound care or change bandages. Rather, they help with tasks like bathing, feeding, and
transportation. Ms. Hess also testified that Cashara Jones of Interim Home Healthcare
was a certified nursing assistant.

        Dr. Miguel Laboy, a forensic pathologist, testified that he participated in the
victim’s autopsy. According to Dr. Laboy, the victim’s compression boots were stained
and contained maggots and pupa. Dr. Laboy also discovered ulcerations on the victim’s
back, buttocks, and inner thighs. He testified the victim had gangrenous ulcers on her
lower calves and her skin was peeling from the side. The autopsy also revealed the
beginning of chronic pneumonia and a lung infection. The victim’s heart muscles were
slightly thickened and there was fatty tissue in the victim’s liver. Dr. Laboy also testified
that the victim’s toxicology report indicated that she had high levels of Benadryl in her
system. He also opined that the victim’s wounds would have been extremely painful.

       Dr. Laboy testified the victim’s medical records revealed a history of “morbid
obesity, asthma, eczema, and allergies.” The victim was hospitalized in February 2011.
She developed septic shock and multiple organ failure requiring vasopressors. Because
                                            -7-
of the vasopressors, the victim developed ischemia. According to Dr. Laboy, the victim
was discharged with appointments to see several specialists; however, per her medical
records, the victim last saw a doctor in October 2011 when she visited the Wound Care
Clinic. Dr. Laboy also testified that the victim was supposed to have a home health aid
worker three times a week. However, the last visit from a home health aid worker was
November 14, 2011.

       According to Dr. Laboy, the victim died as a result of neglected care, including
infected decubitus ulcers, gangrene of the lower extremities, obesity, and hypertension.
The manner of death was homicide.

       Dr. Karen Lakin, an expert in the field of child abuse pediatrics, testified that she
reviewed the victim’s medical records. According to Dr. Lakin, the victim was
hospitalized three times at Le Bonheur – February 7-14, 2011, February 24 - late April,
2011, and early May, 2011. On the victim’s first trip to the hospital, she presented with
nausea, high fever, and diarrhea. When the victim returned to the hospital on February
24, 2011, she presented with more significant problems. In addition to her nausea, high
fever, and diarrhea, the victim was vomiting and extremely hypertensive. Based on her
condition, the victim was admitted to intensive care. According to Dr. Lakin, the victim
had an infection that caused her to go into shock. Additionally, the numerous
medications the doctors gave the victim in an effort to regulate her blood pressure caused
vasoconstriction in the extremities which, in turn, caused tissue damage to her
extremities. When the victim left the hospital in early May 2011, she was 11-years-old
and weighed 252 pounds. When she died on November 24, 2012, the victim weighed
200 pounds, and, per the autopsy, had nothing in her stomach.

       When questioned about the victim’s sores and injuries, Dr. Lakin testified the dry
gangrenous tissue was already dead and would not have been painful. However, the
areas that had some live tissue would have been very painful because of the exposed
nerve endings. The ulcers and pressure sores on the victim’s flank, buttocks, and back of
her thighs would have been “extremely painful.” Not only was the tissue containing the
nerve endings eroding, but the victim was lying in a bed that was soaked in urine. The
combination of exposed, live nerve endings and a urine soiled mattress would have been
excruciating.

       Dr. Lakin testified she also reviewed the photographs taken of the victim and her
injuries. Based on her review of the photographs, Dr. Lakin opined that the victim had
not been seen by a caregiver. Dr. Lakin testified she could not find any record of a
caregiver seeing the victim after the October 2011 visit to the Wound Care Clinic. She
also noted that the gauze on the victim’s feet and legs was completely soaked through.

                                           -8-
       Dr. Lakin testified the victim would have survived if she had been provided proper
medical treatment after her discharge from the hospital. According to Dr. Lakin, the
hospital set-up several follow-up appointments for the victim prior to her discharge
including one with a psychologist to talk with the victim about possible amputation and
the victim’s depression. All of those appointments were cancelled.

        On cross-examination, Dr. Lakin testified the doctors, in order to keep the victim
alive, placed her on a medicine that might have a bad effect on the victim’s feet. She also
stated that the victim and her parents were resistant to amputation and decided to wait
and allow the victim to speak with a psychologist. The doctors suggested, and offered, to
send the victim to a rehab facility so she could receive the help she needed; however, the
family declined.

       Finally, Dr. Lakin testified that the victim would have been aware of her injuries
and capable of communicating her pain and discomfort to her parents. Dr. Lakin also
noted that the high level of Benadryl in the victim’s system was a sign of maltreatment.
Dr. Lakin opined the victim was likely given the Benadryl to help her sleep. At the
conclusion of Dr. Lakin’s testimony, the State rested.

      The defendant’s first witness was Bhalmesh Naik. Mr. Naik testified that he
worked with the defendant at a cab company. He described the defendant as
“hardworking,” “dependable,” and “willing to help.” According to Mr. Naik, the
defendant worked 12-14 hours a day, seven days a week. The defendant’s next witness,
Kevin Warr, also worked with the defendant at the cab company. He too testified that the
defendant worked 12 hours a day, seven days a week.

       The defendant’s mother, brother, and sister also testified on his behalf. Similar to
the testimony of his co-workers, the defendant’s relatives testified that he was a hard
worker and a truthful person.

        Miriam Butler, a home health nurse, also testified for the defense. Ms. Butler
testified the victim was one of her patients when she worked for Interim Healthcare in
2011. Ms. Butler claimed the victim’s wounds were surgical wounds and not pressure
ulcers. She also testified that she provided wound care for the victim and that the
victim’s wounds were not gangrenous at the time she cared for her. According to Ms.
Butler, the victim’s mother would change the dressings on the days Ms. Butler did not
come to the house. Finally, Ms. Butler stated the victim’s mother was the victim’s
primary caregiver and the person Ms. Butler knew. According to Ms. Butler, she did not
know, and would not recognize, the defendant.



                                           -9-
       On cross-examination, Ms. Butler admitted she last saw the victim in November
2011. Ms. Butler also admitted that during a work meeting she learned the defendant had
called Interim Healthcare and stated he did not want anyone to come back to the house.

        The defendant was the final witness presented by the defense. The defendant
testified the victim, his daughter, was highly allergic to seafood and became very sick
because of her allergy in February 2011. As a result, he took her to Le Bonheur
Children’s Hospital where the victim stayed for a week. However, nine days after being
discharged, the defendant had to bring the victim back to the hospital. During her second
trip to the hospital, the victim flat-lined twice and had to be placed in a medically induced
coma.

       When the victim came out of her coma, her toes and legs were black. According
to the defendant, the doctors told him it was a result of the medication she received. The
doctors also soon began discussing the possible need for amputation with the defendant
and his family. The defendant testified that he became upset with the doctors when they
mentioned amputation in front of the victim. The defendant wanted to get a second
opinion but claimed that no other hospital would speak with him because he had
threatened to sue Le Bonheur. Finally, the defendant claimed the victim was forced to
leave the hospital. According to the defendant, “They kick[ed] my child out of the
hospital without determining talking about she’s stabilized. . . . She just came out of ICU
a week before. How is she stabilized?”

       In addition to blaming the hospital for the victim’s health, the defendant also
blamed the victim’s mother for her deteriorating condition and for not keeping him
informed. In short, the defendant claimed the victim’s mother was responsible for caring
for the victim and informing him of her condition, by way of a daily written report. The
defendant claimed he was working a minimum of 112 hours a week and, therefore, was
unaware of the victim’s deteriorating condition.

        The defendant stated that he had been away from the house for 36 hours the day
the victim died. He claimed that he came home and found the victim’s mother holding a
pistol to her head and telling him she was sorry. When he went to check on the victim,
she was unresponsive, so he attempted CPR. According to the defendant, this was the
first time that he noticed the sores on the victim’s body. The defendant testified “I was
angry. I was disappointed. I was shocked. I felt betrayed. Because everything –
evidentially everything I was told [by the victim’s mother] wasn’t the truth.”

       On cross-examination, the defendant maintained that he had no idea the victim
was so sick. When asked about the flies in her room and the smell in her room and the
house, the defendant claimed that they had “a fly problem” in the house but he had never
                                           - 10 -
seen any flies or maggots on the victim. As for the smell, the defendant admitted the
house smelled but claimed it did not get worse over time and he had no idea why the
house smelled. The defendant also claimed that neither the victim nor his wife ever told
him anything was wrong. According to the defendant, his wife was charged with
providing him written reports each day on the victim and never mentioned any issues.
The defense rested after the defendant testified.

       As rebuttal proof, the State called Ms. Elesia Turner, the director of risk
management at Le Bonheur. Ms. Turner testified she met with the defendant for over an
hour because he was not satisfied with the care the victim was receiving. Ms. Turner
stated that the hospital offered to send the victim to Vanderbilt Children’s Hospital in
Nashville at Le Bonheur’s expense. The defendant refused that offer. She also testified
that they agreed to place the victim back on the intensive care floor because the family
liked the staff on that floor, but the defendant refused because it would require them to
“pack up.” At the defendant’s request, Ms. Turner arranged for the victim’s primary
doctor agree to sit down and discuss the victim’s medical records with the defendant page
by page. The defendant initially agreed and made the appointment. Later, the defendant
cancelled the appointment. According to Ms. Turner, the hospital also made
arrangements for the victim to enter a rehab facility but the defendant and his wife
decided they did not want that. Finally, Ms. Turner testified that there came a point
where the defendant was no longer allowed in the hospital because of his foul language
and aggressive behavior.

       The jury found the defendant guilty of both counts of aggravated child neglect and
two counts of the lesser-included offense to first degree murder of criminally negligent
homicide. The trial court merged the aggravated child neglect convictions and merged
the criminally negligent homicide convictions. Following a sentencing hearing, the trial
court sentenced the defendant to 22 years’ confinement for his aggravated child neglect
convictions to be served as a violent offender at 100% release eligibility. The trial court
also sentenced the defendant to two years’ confinement as a standard offender for his
criminally negligent homicide convictions to be served concurrently to his 22 year
sentence.

      The defendant subsequently moved for a new trial, and the trial court denied the
motion. This timely appeal followed.

                                         Analysis

       On appeal, the defendant presents two issues for our review. First, the defendant
contends the evidence is insufficient to support his convictions for aggravated child
neglect, arguing “there was no evidence presented upon which a rational trier of fact
                                          - 11 -
could find a continual course of neglectful conduct.”1 Second, the defendant asserts that
the trial court erred in ordering the defendant, who has no prior record, to serve his
sentence at 100% as a violent offender pursuant to Tennessee Code Ann. section 40-35-
501(i)(2). The State asserts sufficient evidence exists to sustain the defendant’s
convictions. However, the State concedes that the trial court erred in sentencing the
defendant to serve his aggravated child neglect sentence at 100% release eligibility
pursuant to Tennessee Code Annotated section 40-35-501(i)(2). Upon our thorough
review of the record, we agree with the State concerning the sufficiency of the evidence
and affirm the defendant’s convictions. Additionally, we agree with the defendant and
the State concerning the defendant’s sentence for his aggravated child neglect convictions
and remand the matter for the entry of amended judgments setting the defendant’s release
eligibility at 30%.

   I.       Sufficiency of the Evidence

        In assessing these claims, we apply the rule that where sufficiency of the
convicting evidence is challenged, the relevant question of the reviewing Court 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); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
Supreme Court stated the rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge
        and the jury see the witnesses face to face, hear their testimony and observe
        their demeanor on the stand. Thus the trial judge and jury are the primary
        instrumentality of justice to determine the weight and credibility to be
        given to the testimony of witnesses. In the trial forum alone is there human
        atmosphere and the totality of the evidence cannot be reproduced with a
        written record in this Court.

        1
         The defendant does not challenge his convictions for criminally negligent homicide or
the sentences imposed based on those convictions.
                                            - 12 -
Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       In the instant matter, the State charged the defendant under two theories of
aggravated child neglect. As charged in Count 1, aggravated child neglect occurs when a
person “knowingly . . . neglects a child under eighteen (18) years of age, so as to
adversely affect the child’s health and welfare,” and serious bodily injury results. See
Tenn. Code Ann. §§ 39-15-401(b), -402(a)(2). ‘“Serious bodily injury to the child’
includes, but is not limited to, second- or third-degree burns, a fracture of any bone, a
concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain
contusion, injuries to the skin that involve severe bruising or the likelihood of permanent
or protracted disfigurement, including those sustained by whipping children with
objects.” Tenn. Code Ann. § 39-15-402(c).

        As charged in Count 3, aggravated child neglect occurs when a person “knowingly
. . . neglects a child under eighteen (18) years of age, so as to adversely affect the child’s
health and welfare,” and the neglect was especially heinous, atrocious or cruel, or
involved the infliction of torture to the victim. Id. § 39-15-402(a)(3). Our Supreme
Court adopted the following definitions for heinous, atrocious, and cruel:

       Heinous—“Grossly wicked or reprehensible; abominable; odious; vile.”
       Atrocious—“Extremely evil or cruel; monstrous; exceptionally bad; abominable.”
       Cruel—“Disposed to inflict pain or suffering; causing suffering; painful.”

State v. Ashley Bradshaw, No. W2014-00175-CCA-R3-CD, 2015 WL 523688, at *6-7
(Tenn. Crim. App. Feb. 9, 2015) (citing State v. Williams, 690 S.W.2d 517, 529 (Tenn.
1985), perm. app. denied (Tenn. May 18, 2015).

       Initially, we note that the defendant does not challenge the evidence establishing
the fact that the victim suffered serious bodily injury or the fact that the neglect she
suffered was especially heinous, atrocious, or cruel. Though the defendant appears to
concede these points and focuses his argument on appeal only on his alleged ignorance of
the victim’s condition and his claim the State failed to prove the “continual course of
neglectful conduct,” we will briefly summarize the medical and other proof that
overwhelmingly established these elements.



                                            - 13 -
        Those witnesses who entered the defendant’s home on November 24, 2012,
testified that the home smelled even when one was outside the home and that the smell
increased as one entered the home and moved towards the victim’s room. They
described the smell several ways – “horrific odor,” “smelled like death,” “smell [that]
took your breath away,” “real putrid,” “rotting flesh,” “smelled like a gangrenous
wound,” “wretched smell,” “putrid odor associated with death,” and “rotten flesh or a
dead animal.” Even the defendant acknowledged his home smelled. Additionally,
several witnesses, when questioned about the state of the victim’s room, noted such
things as numerous fly strips hanging in the room that were full of flies; the floor was
brown, dark, and sticky; the victim’s mattress was black and heavily soiled; and there
were soiled rags and soiled and bloody bandages on the floor. While the conditions in
which the victim was made to live in were horrific, the medical proof concerning her
condition only further emphasizes the level of the defendant’s neglect towards the victim.

       Each of the first responders to the 911 call immediately noticed the numerous
sores and wounds to the victim’s legs and backside. They also noticed the thick bandages
on the victim’s feet and the soiled compression boots. Additionally, Dr. Laboy testified
that the victim’s compression boots were stained and contained maggots. He also
discovered ulcerations on the victim’s back, buttocks, and inner thighs, as well as,
gangrenous ulcers on her lower calves. Dr. Laboy opined that the victim’s wounds would
have been extremely painful and that she died as a result of neglected care, including
infected decubitus ulcers, gangrene of the lower extremities, obesity, and hypertension.

       Dr. Karen Larkin, an expert in the field of child abuse pediatrics, testified that the
gangrenous tissue that was still alive would have been extremely painful because the
nerve endings were exposed. Not only were the nerve endings exposed and unprotected
in general, but the victim was lying in a bed that was soiled and soaked in urine.
According to Dr. Lakin, the combination of exposed nerve endings and the acidic nature
of the urine would have been excruciating. Furthermore, and more importantly, Dr.
Lakin testified that the victim would have been aware of her injuries and capable of
communicating her pain and discomfort to her parents. Finally, both Dr. Laboy and Dr.
Lakin testified that, other than a visit to the Wound Care Clinic in October 2011, the
victim last received any medical care in May 2011.

       Based on the proof as summarized above, it is clear the State established beyond a
reasonable doubt that the victim suffered serious bodily injuries as a result of the
defendant’s neglectful conduct and that the neglect was especially heinous, atrocious,
and/or cruel.

       Turning to the defendant’s claim that he was unaware of the victim’s deteriorating
condition and how much she was suffering, the proof simply does not support his claim.
                                           - 14 -
As noted previously, the victim’s room, as well as the rest of the house, wreaked of
“death” and “rotting flesh.” According to one witness, the odor was so putrid and strong
that incense and candles burning in the victim’s room could not cover it. Additionally,
the victim’s bed and floor were soiled. Her room contained numerous fly strips that were
full of dead flies, and there were soiled and bloody bandages on the floor. While the
defendant attempts to rely on the fact that the bandages on her feet were clean and white,
the testimony reveals that her compression boots were brown and soiled. Additionally,
the defendant was aware that the victim’s feet and legs were in such a condition because
the doctors had suggested amputation in April 2011. The defendant was also aware of
the fact that the victim’s condition had deteriorated since the initial suggestion of
amputation because he bought a portable toilet for her due to the fact she could hardly
walk.

       In light of the obvious nature of the victim’s wounds and sores, the state of the
victim’s room, the smell in the house, and the defendant’s knowledge that the victim’s
feet and legs were in such a condition that the doctors felt amputation was necessary, the
evidence of the defendant’s knowledge of the victim’s deteriorating condition is
overwhelming. By finding the defendant guilty of aggravated child neglect, it is clear
that the jury weighed the evidence presented by the State against the defendant’s claim
that he was ignorant of the victim’s condition and accredited the State’s proof over the
defendant’s claim which is solely their purview. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

        Finally, relying on State v. Adams, 24 S.W.3d 289 (Tenn. 2000), the defendant
argues that the State also failed to find “a continuing course of neglectful conduct.” In
support of this claim, the defendant argues that he took the victim to the hospital or
“called 911 when she got sick, so that she could get medical treatment she needed,” and
“even if one could construe [the defendant’s] inaction to constitute neglect, the fact that
he acted promptly to get [the victim] to the hospital so that she could receive the medical
help she needed rebuts any intimation of neglect.” However, as correctly noted by the
State, the Court in Adams held “the offense [of child neglect] continues until the person
responsible for the neglect takes reasonable steps to remedy the adverse effects to the
child’s health and welfare caused by the neglect.” Id. at 296. Therefore, the defendant’s
neglect in the instant matter began at some point in late 2011 when he made the decision
not to take the victim to see the specialist the hospital had recommended, made the
decision to fire the home healthcare company that was helping the victim, and, in short,
made the decision not to provide the victim with any further medical treatment. Though
the defendant called 911 on the day the victim died, his action, while a step towards
remedying the neglect, did not negate his obvious neglect of his child during the
preceding year and a half. See Ashley Bradshaw, 2015 WL 523688, at *7 (appellant’s

                                          - 15 -
actions in immediately seeking medical help for the victim does not serve to negate her
neglectful conduct).

        Based on the foregoing, the evidence presented at trial is sufficient to support the
defendant’s convictions for aggravated child neglect. Accordingly, the defendant is not
entitled to relief.

   II.    Excessive Sentence

      Finally, the defendant, relying on this Court’s opinion in State v. Vernica Shabree
Calloway, No. M2011-00211-CCA-R3-CD, 2014 WL 1394653 (Tenn. Crim. App. April
4, 2014), perm. app. denied (Tenn. Sept. 25, 2014), contends that the trial court imposed
an excessive sentence by erroneously sentencing him pursuant to Tennessee Code
Annotated section 40-35-501(i)(1)-(2). The State concedes the defendant’s sentence is
improper. After a thorough review of the record and the applicable law, we agree and
remand to the trial court for a new sentencing hearing.

       In our review of the defendant’s convictions and sentences for aggravated child
neglect, we first note our Supreme Court concluded in Dorantes, that, as a result of the
1998 amendment to Tennessee Code Annotated section 39-15-402, “aggravated child
abuse and aggravated child neglect [are] separate offenses.” 331 S.W.3d at 385 n. 15.
Additionally, in Vernica Shabree Calloway, this Court relying on Dorantes, concluded
Tennessee Code Annotated section 40-35-501(i)(1) did not apply to convictions and
sentences for aggravated child neglect. Vernica Shabree Calloway, 2014 WL 1394653,
at *41. Specifically, this Court held that because aggravated child abuse and aggravated
child neglect are separate offenses and because only aggravated child abuse is included in
the enumerated offenses in Tennessee Code Annotated 40-35-501(i)(2), then aggravated
child neglect is not a conviction for which 100% release eligibility is required. Id. We
see no reason to depart from the holding in Dorantes or Calloway.

        Therefore, we agree that the defendant should have been sentenced as a Range I,
standard offender to serve his sentences for aggravated child neglect at 30% release
eligibility rather than as a violent offender at 100% release eligibility. Accordingly, we
reverse the defendant’s sentence and remand the matter to the trial court for a new
sentencing hearing.

                                       Conclusion

      Based on the foregoing authorities and reasoning, we remand this matter for a new
sentencing hearing. In all other respects, the judgments of the trial court are affirmed.

                                           - 16 -
  ____________________________________
  J. ROSS DYER, JUDGE




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