              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                FILED
                          FEBRUARY 1999 SESSION
                                                                July 23, 1999

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                *    C.C.A. # 01C01-9708-CC-00339

            Appellee,              *    Montgomery County

VS.                                *    Honorable Robert W. W edemeyer, Judge

CEDRIC PHELPS,                     *    (First Degree Murder–Life)

             Appellant.            *



FOR THE APPELLANT:                      FOR THE APPELLEE:

STACY A. TURNER                         JOHN KNOX WALKUP
105 South Third Street                  Attorney General & Reporter
Clarksville, TN 37040
                                        KAREN M. YACUZZO
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        JOHN WESLEY CARNEY, JR.
                                        District Attorney General

                                        DANIEL BROLLIER
                                        Assistant District Attorney General
                                        204 Franklin Street, Suite 200
                                        Clarksville, TN 37040




OPINION FILED: _______________



AFFIRMED




JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

       The defendant, Cedric Phelps, was convicted of first degree murder in the

perpetration of aggravated child abuse, see Tenn. Code Ann. §§ 39-13-202; 39-

15-402, and sentenced to life in prison. He appeals, arguing that the trial court

erroneously admitted certain prejudicial testimony and that the evidence at trial

was insufficient to support the jury’s verdict of guilt. We affirm the judgment of

the trial court.



                                 BACKGROUND

       Sometime during the early morning of June 17, 1995, the defendant’s

daughter, twenty-five-day-old Lichelle Phelps, suffered an injury to her head from

which she died a few hours later. The defendant’s wife, Tiffany Phelps, testified

that she attended the child at approximately 3:00 a.m. and that she was alive

and well at that time. Ms. Phelps then left the child in the defendant’s care and

retired to another room for the remainder of the morning.



       The defendant stayed with the child in the couple’s living room and slept.

He testified that he woke at approximately 7:00 a.m. and noticed that the child

was pale and turning blue. The defendant stated that he attempted to check for

a pulse and then woke his wife who called for an ambulance. When the

ambulance arrived, the child was warm and limp but had no heart beat and was

not breathing. The emergency medical personnel began performing

cardiopulmonary resuscitation and transported the child to the emergency room

of Blanchfield Army Hospital at Fort Campbell. There, Dr. Scott Rice

unsuccessfully continued attempts to resuscitate her. She was pronounced

dead at 8:05 a.m.



       During his initial examination of the victim, Dr. Rice noticed an area of

swelling on the right side of her head. This discovery prompted him to order x-

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rays of her head. These x-rays revealed a broadly separated fracture of the

child’s skull. Dr. Rice then ordered further skeletal x-rays, which revealed

multiple additional injuries.



        Based on his own examination, as well as his review of the reports from

two subsequent autopsies, Dr. Rice testified that the cause of the child’s death

was severe head trauma, which, he estimated, would have resulted in

symptoms–“most likely totally unconscious”–that would have been immediately

observable to a person with no medical training and would have caused her

death within one to two hours. He opined that the fatal injury would have

required a “very significant” or “severe amount of force.” And, after describing

each of the child’s injuries and explaining in detail how each typically occurs, he

opined that the injuries were intentionally inflicted rather than accidental.



       Approximately fifteen hours after her death, Dr. Charles Harlan conducted

an autopsy of the victim. Like Dr. Rice, Dr. Harlan testified that the cause of

death was blunt trauma to the head and opined that the injury would have

required a “major impact.” Unlike Dr. Rice, however, Dr. Harlan opined that the

head injury appeared accidental and estimated that the interval between injury

and death would have been approximately twenty-four hours, with the child

becoming symptomatic within twelve to eighteen hours of the injury.



       On September 25, 1995, Dr. George R. Nichols, II conducted a second,

post-exhumation autopsy of the victim and reviewed all previously conducted x-

rays, examinations, and reports. Based on his findings, Dr. Nichols testified that

the child had suffered the following injuries: a large complex right parietal skull

fracture; a second, lineal or simple skull fracture; fractures of the left sixth and

seventh ribs; a corner or metaphysis fracture of the right humerus; a periosteal

hemorrhage on the right radius; and discoloration of the outer membrane of the


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left tibia. With the exception of the last listed injury, which Dr. Nichols described

as a therapeutic injury from the insertion of a needle into the bone, Dr. Nichols

opined that all of these injuries were inflicted rather than accidental, thus clearly

indicating child abuse. He further opined that all of the victim’s injuries had

occurred within one day of her death. He testified that the victim’s head injuries

resulted from multiple impacts with a “huge” amount of force and attributed the

victim’s immediate cause of death to brain injury. As for the time-line following

injury, Dr. Nichols stated that the victim would have been symptomatic within a

few minutes and would have died within an hour or less.



       Three additional physicians evaluated the x-rays, autopsy photographs

and reports, and other records of the victim and testified at the defendant’s trial.

Dr. Ellen Wright Clayton opined that the victim had died from repeated blows to

the head, inflicted with “a great deal” of force. After extensively detailing the

basis for her opinion, she further stated that the victim’s injuries were not

accidental. Dr. Clayton testified that head injuries like the victim’s would typically

cause symptoms and death within a few hours and, noting that the victim’s brain

had not yet started to swell at her death, she concluded that the victim had in

fact died shortly after her injuries were inflicted.



       Based on the presence of subdural hemorrhaging, Dr. Mary Case

specifically identified the fatal head injury as a diffuse axonal injury (literally, the

tearing away of the axonal processes that connect the nerve cells of the brain).

She testified in detail how such injuries occur and opined that the victim’s injuries

were not accidental but inflicted. Dr. Case also testified that the fatal injury

would have produced immediate unconsciousness and death in probably less

than one hour.




                                           -4-
       Finally, Dr. Cleland Black opined that the cause of death was multiple

inflicted trauma to body, head, and trunk. He testified that the victim would have

exhibited severe symptoms very soon after the injuries to her head and could not

have survived more than a few hours after the injuries.



       In summary, five of the six medical experts who testified in this case

opined that the victim’s injuries were inflicted rather than accidental and that the

victim would have died within minutes to a few hours after incurring her head

injuries. Each of these five experts also testified that the victim would have

been symptomatic almost immediately after the injury. These opinions,

combined with Ms. Phelps testimony that the victim was fine when she saw and

fed her at 3:00 a.m., support the state’s theory that the victim’s injuries were

inflicted after 3:00 a.m., when the defendant had sole custody of the child. Dr.

Harlan, the single expert whose opinion did not support the state’s case as to the

time line from injury to symptoms and death, testified that the victim would have

become symptomatic within twelve to eighteen hours and would have died

approximately twenty-four hours following her injuries. Dr. Harlan also

contradicted the other five experts in his opinion that the victim’s injuries

appeared accidental.



                                      ANALYSIS

       The defendant first argues that the trial court erred in allowing Doctors

Rice and Clayton to offer their opinions as to the interval between the victim’s

injury and death. He asserts that because neither doctor is a forensic

pathologist, they were not competent to testify as experts in this area.



       The admissibility of expert testimony is a matter entrusted to the sound

discretion of the trial court, and this Court will not disturb the trial court’s decision




                                           -5-
in that regard absent an abuse of that discretion. See State v. Ballard, 855

S.W.2d 557, 562 (Tenn. 1993).



       We find no error in the trial court’s admission of the contested testimony.

Both doctors were qualified to state their medical opinions based on their

experience and training. Both are medical doctors. Both specialize in pediatrics,

and both have substantial experience treating children with severe head injuries.

That neither is a forensic pathologist goes to the weight of their testimony, not its

admissibility. Further, we note that any hypothetical error in allowing this

testimony would not be prejudicial, as their testimony regarding the interval

between injury and death was consistent with, and cumulative to, that of doctors

Nichols, Case, and Blake.



       The defendant next argues that the evidence is insufficient to support the

jury’s finding of guilt. When an appellant challenges the sufficiency of the

evidence, this Court must determine whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of a crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn

therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state

accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).


                                         -6-
Moreover, a guilty verdict removes the presumption of innocence enjoyed by

defendants at trial and replaces it with a presumption of guilt. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the

sufficiency of the evidence carries the burden of illustrating to this Court why the

evidence is insufficient to support the verdict. See State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996).



       Based primarily on Dr. Harlan’s testimony that death would not have

occurred for approximately twenty-four hours after the victim’s injuries, the

defendant argues that the evidence does not establish that the victim’s injuries

occurred during his exclusive care and custody of the child. The undisputed

evidence, including the defendant’s own testimony, indicates that the defendant

was solely responsible for the custody and welfare of the victim during the five

hours immediately preceding her death. Further, five of six experts testified that

the victim’s injuries were intentionally inflicted and necessarily occurred within

this five-hour period. Thus, the evidence supports the jury’s conclusion that the

victim died as the result of severe child abuse inflicted by the defendant during

his exclusive custody of the child.



                                  CONCLUSION

       The judgment of the trial court is AFFIRMED.




                                            _____________________________
                                            JOHN EVERETT W ILLIAMS, Judge




                                         -7-
CONCUR:




____________________________
DAVID G. HAYES, Judge




____________________________
JAMES CURWOOD WITT, JR., Judge




                                 -8-
