           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    Assigned on Briefs March 18, 2009

                       STATE OF TENNESSEE v. DONALD KNIGHT

                         Appeal from the Circuit Court for Rutherford County
                                  No. F-58588 Don R. Ash, Judge



                         No. M2008-01023-CCA-R3-CD - Filed August 17, 2009


Appellant, Donald Knight, was indicted by the Rutherford County Grand Jury for felony murder and
aggravated child abuse after the death of five-month-old T.J.1 Appellant was convicted by a jury of
the lesser included offense of voluntary manslaughter and aggravated child abuse. He was sentenced
as a Range I standard offender to five years at 30% for the voluntary manslaughter conviction.
Appellant received a sentence of twenty years for the aggravated child abuse conviction, to be served
at 100% in incarceration. The sentences were ordered to run concurrently. Appellant filed a motion
for new trial that was denied by the trial court. On appeal, Appellant argues that the trial court
improperly denied a continuance and that the evidence is insufficient to support the convictions. We
determine that Appellant failed to show actual prejudice resulting from the denial of the continuance
and that the evidence was sufficient to support the convictions. Accordingly, the judgments of the
trial court are affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER, JJ., joined.

John Driver, Assistant Public Defender, Murfreesboro, Tennessee, for the appellant, Donald Knight.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General;
William Whitsell, District Attorney General, and Laurel Hemmingway, Assistant District Attorney
General, for the appellee, State of Tennessee.




       1
           It is the policy of this Court to refer to minor victim’s by their initials.
                                              OPINION

       On March 7, 2006, a 911 call was placed from 411 Ross Drive, in Smyrna, Tennessee, the
home of Jennifer Jones. According to the caller, T.J., Ms. Jones’ five month-old son, was not
breathing. The child died after being transported to the hospital.

        Initially, medical personnel determined that T.J. had died of sudden infant death syndrome,
or SIDS. The preliminary autopsy report, however, indicated that the child had been shaken. An
investigation was conducted by Detective Jeffrey Duke of the Smyrna Police Department. Detective
Duke interviewed the occupants of the residence, including Ms. Jones and her mother Kathy Jones.
Detective Duke also interview Kathy Jones’s boyfriend Steve Camp, who frequently stayed at the
residence, and Appellant, Ms. Jones’ boyfriend. At the time of T.J.’s death, Appellant was often the
care giver for the child while Ms. Jones was participating in an educational internship.

       When Appellant was interviewed in connection with the investigation, he admitted that he
had shaken the baby but stated that it “wasn’t that hard” and only occurred “a couple of times.”
Appellant stated that he “didn’t think that that would ever kill him.” Appellant recalled the baby
gasped for air but did not tell Ms. Jones because he was worried that she would “fly off the hinges.”

       Appellant was indicted in May of 2006 by the Rutherford County Grand Jury for felony
murder and aggravated child abuse. The trial was set to begin in December of 2006. Prior to trial,
Appellant requested a continuance in order to find an expert witness. The trial court granted
Appellant’s first request and rescheduled the trial for February of 2007. Appellant sought a second
continuance on the basis that his expert was not under contract and would not be able to testify in
February. The trial court complied with this request and, after consulting with the expert, the case
was reset for May 2007.

        Approximately one month prior to the trial date, Appellant sought a third continuance.
Apparently, the expert witness had been given the dates of trial and had agreed to be present for the
trial but had forgotten to mark a “personal matter” on his calendar. Because of this mistake,
Appellant’s expert would not be available for all of the trial dates but could attend about three to four
hours on one of the scheduled trial dates. Appellant thought that a continuance would be beneficial
to ensure that his expert would be available for the entire trial.

        The trial court denied the motion. However, the trial court expressed that it was willing to
be flexible to a certain extent. Appellant renewed the motion to continue on April 30, 2007, again
stating that the expert’s absence during the entire trial would serve to diminish his testimony. The
trial court denied the motion. As a result, Appellant’s expert did not testify at trial. His report was
admitted through the testimony of the State’s expert witness, Dr. Bruce Levy.

        The trial began as scheduled. At trial, Ms. Jones testified that March 7, 2006, began as a
normal day. She arose that morning around 6:30 a.m. with her son. Kathy Jones helped Ms. Jones
get T.J. ready for the day and feed him while Ms. Jones was showering and getting ready for work.


                                                  -2-
Ms. Jones left the house at around 8:00 a.m. for work. Kathy Jones watched T.J. for part of the day.
Kathy described T.J. as restless that day but thought that it might be due to teething. According to
Kathy, T.J. ate and drank normally and took a nap.

       Appellant came to pick up the child around 2:00 p.m. Appellant and Ms. Jones had been
dating for several months. Appellant often watched T.J. Ms. Jones felt like she could trust
Appellant with her child.

        Ms. Jones picked up T.J. at around 5:15 p.m. that day at Appellant’s parent’s house. T.J. was
sleeping but cried when he was awakened. Ms. Jones thought that he was hungry but when she tried
to feed him he refused to eat. Ms. Jones took him home and T.J. was fussy for the rest of the
evening. Around 9:00 p.m., Ms. Jones got a telephone call from her mother and had to step out of
the room so that she could hear her mother over T.J.’s crying. She handed the baby to Appellant
when she stepped out of the room. When Ms. Jones returned to the room, T.J. had stopped crying
and appeared to be asleep.

        At that time, Ms. Jones and Appellant got the baby ready for bed. Appellant laid him down
in the crib, and Ms. Jones kissed the child goodnight. Ms. Jones made sure that the volume on the
baby monitor was on high because she expected T.J. to wake up hungry.

       Ms. Jones went to bed around 9:30 p.m. Appellant was still there at the time. At around
10:30 p.m., Steve Camp arrived at the house. Appellant came outside as Mr. Camp was entering the
residence. Appellant reported that T.J. was sleeping “good.” Mr. Camp went inside, ate something,
then went to Kathy Jones’s room and waited for her to come home. Mr. Camp did not enter T.J.’s
room that evening.

       Kathy Jones returned home around 11:15 p.m. She immediately went to T.J.’s room to check
on him, like she did every night. She immediately noticed that he was pale and found the child to
be cold and limp when she picked him up. Kathy Jones ran screaming through the house for Ms.
Jones. Mr. Camp called 911 and reported that the child was lifeless and pale.

       The family attempted CPR on the child until the Smyrna Police arrived and took over.
Rutherford County Emergency Medical Services arrived at the residence at 11:36 p.m. and continued
to administer CPR to the child. They noted no visible marks or bruises on the child as they
transported him to Stonecrest Medical Center.

        When the child arrived at the hospital, his heart was not beating, and he was unable to breathe
independently. He was treated by Dr. Lori Lynch. When T.J. arrived at the hospital, he had no pulse
and no responsive function. There was no visible trauma noted by the emergency room personnel
or the emergency medical personnel. He was treated for approximately thirty minutes before being
pronounced dead.




                                                 -3-
        An autopsy was performed by Dr. Levy, the Chief Medical Examiner for Rutherford County.
The external exam of the body was “unremarkable.” The child presented with two small bruises,
one on his head and one on his right buttocks. According to the doctor, the child appeared to be well
cared for and a typical size and weight for his age. The autopsy revealed a significant amount of
bleeding in the brain, approximately four ounces of blood. This amount of blood in the subdural
space would be lethal to an adult. The brain displayed evidence of acute subdural and subarachnoid
hemorrhages, retinal hemorrhaging, and shearing injuries to the axons. Dr. Levy explained that the
injuries were indicative of a “shaken” baby. There was also evidence of a prior subdural hemorrhage
that was approximately one month old.

        The conclusion of the autopsy was that T.J. died as a result of trauma at the hands of another
person. The trauma was most likely blunt force trauma that occurred within minutes to hours of the
child’s death. The cause of death was brain hemorrhaging as a result of trauma. According to Dr.
Levy, at the time the trauma was inflicted, the child would have immediately become symptomatic,
even comatose, with changes in skin color and breathing difficulties.

        Appellant contended through the written opinion of Dr. Elias G. Chalhub, that T.J.’s death
was caused by a “re-bleed” of the old injury. The “re-bleed” theory contends that as the body is
healing an injury, it is more vulnerable in that area, making it more susceptible to repeat injury at that
time. Dr. Chalhub opined that the subarachnoid hemorrhage could be a result of a re-bleed of the
older injury that the child had suffered. Dr. Levy rejected that conclusion. According to Dr. Levy,
the theory does not make sense. He explained that the tissue that has healed or healing is not any
more likely to bleed than other tissue. Secondly, Dr. Levy explained that a re-bleed would not
account for injuries as significant as T.J.’s. A re-bleed would not cause the amount of blood loss that
the child suffered, and the old injury was only on one side of the brain. At the time of the autopsy,
there were injuries on both sides of the brain.

        Dr. Mark Becher, the director of neuropathology at Vanderbilt, concurred with Dr. Levy’s
assessment. Dr. Becher opined that the injuries to T.J., which ultimately led to his death, occurred
within three hours of his death. Dr. Becher agreed that upon infliction of the fatal injuries, T.J.
would have become symptomatic. Dr. Becher also rejected the re-bleed theory and explained that
even if the child’s injuries had occurred in the emergency room, he would not have survived.

       Appellant called Smyrna Police Officer Jason Anderson to testify in his behalf. According
to Officer Anderson, he responded to the emergency call on March 7, 2006. According to his
“checklist,” Ms. Jones was the last person to be with or see the child prior to the emergency call.
Further, Mr. Camp had a noticeable odor of alcohol about his person at the time Officer Anderson
responded to the call.

       After hearing the evidence, the jury convicted Appellant of voluntary manslaughter and
aggravated child abuse. As a result of the convictions, he was sentenced to an effective sentence of
twenty years. After the denial of a motion for new trial, Appellant appealed his convictions.



                                                   -4-
                                              Analysis
                                       Denial of Continuance

        On appeal, Appellant argues that the trial court improperly denied a continuance.
Specifically, Appellant argues that due to the “complex medical issues” he “was at a severe
disadvantage proceeding at trial without assistance of a medical expert.” Appellant argues that his
expert’s testimony about a re-bleed theory coupled with the fact that there was no proof Appellant
did anything to cause the child’s injuries would “meet the standard for reversal” in this case. The
State argues that the trial court did not abuse its discretion and Appellant has failed to establish
prejudice by the denial of the continuance, especially in light of the fact that his expert’s report was
submitted to the jury for consideration.

        The granting of a continuance rests within the sound discretion of the trial court. State v.
Thomas, 158 S.W.3d 361, 392 (Tenn. 2005); State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004).
We will reverse the denial of a continuance only if the trial court abused its discretion and the
defendant was prejudiced by the denial. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). In order
to show prejudice, the defendant must demonstrate that a different result might reasonably have been
reached if the trial court had granted the continuance or that the denial of the continuance denied the
defendant a fair trial. Id. “Moreover, a defendant who asserts that the denial of a continuance
constitutes a denial of due process or the right to counsel must establish actual prejudice.” Odom,
137 S.W.3d at 589. This Court has recognized that a continuance might be appropriate in order to
afford a defendant a “reasonable opportunity” to locate a witness. State v. Morgan, 825 S.W.2d 113,
117-18 (Tenn. Crim. App. 1991). However, the burden rests with the defendant to show that a
continuance might have reasonably resulted in locating the witness. Id.; see also Brown v. State, 489
S.W.2d 855, 857 (Tenn. Crim. App. 1972).

          According to the record in the case herein, the case was originally set for trial in December
of 2006. Counsel for Appellant requested a continuance to obtain an expert witness in early
December. The trial court granted this request and set the case for trial in February of 2007. Prior
to trial, Appellant sought a second continuance in order to finalize the contract with the expert. The
trial court granted the second request for continuance and reset the case for trial in May. Prior to the
May 2007 trial date, Appellant sought a third continuance because his retained expert could not
attend the entire trial and could only be available for three to four hours on one day of the trial.
Apparently, the expert forgot to note a personal matter on his calendar when he agreed to become
an expert at Appellant’s trial. The trial court denied this motion to continue but assured Appellant
that there would be flexibility with regard to the presentation of the proof at trial. The trial court
expressed its desire to accommodate Appellant’s schedule in any way possible.

        Appellant renewed his motion to continue, offering to remain incarcerated and waive any
future claims for speedy trial violations. The trial court refused to grant the continuance. We
determine that the trial court has not abused its discretion. The trial court offered a great deal of
flexibility in the trial process and had already granted two continuances. Further, Appellant did not
present the testimony of the expert or any additional evidence at the hearing on the motion for new


                                                  -5-
trial to support a showing of actual prejudice. The defense expert’s report was ultimately introduced
at trial and was available for the jury to consider. The trial court did not abuse its discretion in
denying the third continuance. Appellant is not entitled to relief on this issue.

                                     Sufficiency of the Evidence

        Next, Appellant challenges the sufficiency of the evidence. Specifically, Appellant
complains that there is no proof that Appellant knowingly caused injury to T.J. Further, Appellant
argues that the State failed to prove the elements of voluntary manslaughter or criminal homicide.
The State disagrees, arguing that “the jury rejected the theory that [T.J.’s] death was caused by a re-
bleed and accredited the State’s theory that [Appellant], after dealing with a crying, fussy baby for
hours, violently shook T.J. causing profuse bleeding in his brain that led to his death.”

         When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from
reweighing or reevaluating the evidence when considering the convicting proof. State v. Morgan,
929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier
of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning
the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual
issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). Of course, a criminal offense may be established
exclusively by circumstantial evidence. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987); State
v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995). However, the trier of fact must be able to
“determine from the proof that all other reasonable theories except that of guilt are excluded . . . .”
Jones, 901 S.W.2d at 396; see also, e.g., Tharpe, 726 S.W.2d at 900.

        Voluntary manslaughter requires proof that the defendant intentionally or knowingly killed
another “in a state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner.” T.C.A. § 39-13-211(a). The jury is responsible for reviewing
the evidence to ascertain whether it supports a finding of adequate provocation. State v. Williams,
38 S.W.3d 532, 539 (Tenn. 2001).


                                                  -6-
        Further, to convict Appellant of aggravated child abuse, the State was required to prove: (1)
that Appellant knowingly, other than by accidental means treated T.J. in such a manner as to inflict
injury; and (2) that the act of abuse resulted in serious bodily injury. See T.C.A. §§ 39-15-401(a)
& -402(a)(1). Serious bodily injury includes bodily injury which involves: “(A) A substantial risk
of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious
disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member,
organ or mental faculty.” T.C.A. § 39-11-106(a)(34). 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. T.C.A. § 39-11-106(a)(20). To convict Appellant of felony murder, the State had
to prove that T.J. was killed “in the perpetration of or attempt to perpetrate any . . . aggravated child
abuse.” T.C.A. § 39-12-202(a)(2). The State was not required to prove a culpable mental state, other
than “the intent to commit the enumerated offense.” T.C.A. § 39-12-202(b).

         After a review of the evidence, we conclude that there was sufficient evidence presented at
trial for a rational trier of fact to find Appellant guilty of aggravated child abuse and felony murder.
There was testimony from Ms. Jones that T.J. was crying and fussy when she left the room to take
a telephone call from her mother and that the child had stopped crying and appeared to be asleep
when she came back into the room a few minutes later. Appellant was the only person in the room
with T.J. at that time. Ms. Jones testified that she then helped Appellant put the child in bed and
kissed the child goodnight. Dr. Levy testified that after suffering the type of injuries that T.J.
suffered the child would likely have been in a comatose state. Further, T.J. had injuries consistent
with those that would be sustained by a “shaken baby.” Dr. Levy stated that there was a large
amount of blood in the child’s brain and that an adult suffering injuries of this magnitude would have
likely died. He opined that the victim died as a result of blunt head trauma. Appellant himself
admitted in his statement to police that he shook the child and that he did not tell Ms. Jones because
she was under a lot of stress.

        After reviewing the evidence, we conclude that the evidence presented was sufficient to
support a conviction of Appellant’s indicted crime of felony murder. See T.C.A. § 39-12-202(a)(2).
A reasonable jury could have determined that Appellant shook the child violently in order to quiet
him while his mother stepped out of the room to take a telephone call. Accordingly, because the
evidence was sufficient to support a felony murder conviction, it was also sufficient to support a
conviction for the lesser included offense of voluntary manslaughter. See State v. Dominy, 6 S.W.3d
472, 477 n.9 (Tenn. 1999) (noting that “voluntary manslaughter is a lesser-included offense of first
and second degree murder”). Furthermore, when “the evidence [is] sufficient to support [a]
conviction for the greater offense charged, the defendant cannot complain of the jury finding him
guilty of the lesser offense.” McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974); see
also State v. Carrie Ann Brewster, No. E2004-00533-CCA-R3-CD, 2005 WL 762604, at *3 (Tenn.
Crim. App., at Knoxville, Apr. 5, 2005) (citing McDonald for the same proposition). Accordingly,
this issue is without merit.




                                                  -7-
                                    Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.


                                      ___________________________________
                                      JERRY L. SMITH, JUDGE




                                         -8-
