                                                                                          11/05/2019
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                       AT NASHVILLE
                                August 20, 2019 Session

              STATE OF TENNESSEE v. DONALD LEE HARRIS

                Appeal from the Criminal Court for Davidson County
                   No. 2013-D-3164    Cheryl Blackburn, Judge


                            No. M2018-01680-CCA-R3-CD


Aggrieved of his Davidson County Criminal Court jury convictions of one count of
felony murder in the perpetration of aggravated child neglect, one count of the facilitation
of felony murder in the perpetration of aggravated child abuse, three counts of aggravated
child abuse, one count of aggravated child neglect, and one count of the facilitation of
aggravated child abuse, the defendant, Donald Lee Harris, appeals. The defendant
alleges that the trial court erred by permitting the State to introduce the victim’s medical
records on rebuttal, that the State’s election of offenses was insufficient to ensure jury
unanimity, that the trial court erred in its jury instructions regarding criminal
responsibility for the conduct of another, that the evidence was insufficient to support his
convictions, and that the total effective sentence of life plus 75 years is excessive. The
defendant’s convictions of felony murder (Count 9), facilitation of felony murder (Count
8), aggravated child abuse (Counts 2 and 3), aggravated child neglect (Count 7), and
facilitation of aggravated child abuse (Count 1) are affirmed. We find no error in the
sentencing decisions of the trial court. Because the State’s election of offenses was
insufficient to safeguard the defendant’s right to a unanimous verdict in Count 6, the
defendant’s conviction in Count 6 is reversed. Because dual convictions of aggravated
child abuse in Counts 2 and 3 violate double jeopardy principles, those convictions must
be merged. The case is remanded for a new trial on the offense of aggravated child abuse
in Count 6 and for the entry of corrected judgment forms reflecting the merger of Counts
2 and 3.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in
                                 Part; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Manuel B. Russ (on appeal) and Leah Wilson (at trial), Nashville, Tennessee, for the
appellant, Donald Lee Harris.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Pam Anderson
and Doug Thurman, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

             The Davidson County Grand Jury charged the defendant and Shantonio
Hunter with six counts of aggravated child abuse, one count of aggravated child neglect,
one count of felony murder in the perpetration of aggravated child abuse, and one count
of felony murder in the perpetration of aggravated child neglect for injuries inflicted on
Ms. Hunter’s three-year-old son, E.H., that eventually led to his death.

                                          Trial

              On April 26, 2013, Metropolitan Nashville Police Department (“Metro”)
Officer Brandon O’Guinn responded to a call of an unresponsive child at 919 North 12th
Street in Nashville. When Officer O’Guinn approached the apartment, he encountered
Ms. Hunter in the doorway, screaming. She “alluded to the right side of the door,” and
he entered the apartment to the right. Inside the apartment, Officer O’Guinn observed “a
small boy on an air mattress . . . being given CPR by the defendant.” When he checked
for the victim’s pulse and found none, Officer O’Guinn told the defendant to continue
CPR. He recalled that the emergency medical personnel arrived within two minutes, and
the victim was taken to Vanderbilt University Medical Center (“VUMC”) via ambulance.
After the victim was taken from the scene, Officer O’Guinn asked the defendant, who
was visibly upset, what had happened. Officer O’Guinn testified,

                    He had indicated that the child had been sick overnight
             several times and [the victim] had -- defecated and thrown up
             on himself. He had been given a bath several times. I do
             recall the mattress being wet underneath where the small
             child was laying and I initially, I mean just thinking, thought
             that he might have drowned in the tub. I remember asking
             did -- at any time did he go under the water, and he said no.
             But that was the reason . . . for the dampness under the body
             and why he was wet at the time, that he had just got out of the
             tub because he had been sick and had some issues overnight.

            Metro Officer Joseph Progar, who also responded to the scene, went into
the bathroom and saw “that the bathtub was drained but it was still wet, and there was
                                           -2-
like a towel or washcloth that was in the tub.” The floor was wet, and another towel lay
on the toilet seat. The defendant, who was “very upset,” told Officer Progar “[t]hat the
child had soiled himself and that the child had, you know, like two baths within about an
hour and a half or so.” Officer Progar also observed a bottle of children’s cold
medication on the floor next to the air mattress.

              Metro Crime Scene Investigator Joe Williams responded to VUMC, where
he spoke with Detective Selene Julia before photographing the victim’s body. While
photographing the body, Investigator Williams observed a bruise “above the rib stomach
area” that “had . . . real faded dots from like where a knuckle” had struck him with a fist.

               Sharon Tilley, who was a Metro Crime Scene Investigator at the time of the
victim’s death, photographed the apartment and collected various items of evidence,
including a green fabric belt with a ring loop closure, a “white metal stud belt” that was
broken and stained with something reddish brown, a piece of black belt, and an orange
polo shirt stained with a reddish-brown substance.

              Metro Detective Selene Julia responded to VUMC, and, when she arrived
sometime between 7:30 and 8:00 a.m., the victim had not yet been pronounced dead. By
the time she saw him, however, he had been pronounced dead. Detective Julia observed
“numerous physical injuries on him,” including “noticeable injures” on the victim’s
chest, stomach, sides, and face.

               Detective Julia identified the defendant’s voice on telephone recordings that
were exhibited to her testimony and played for the jury. In the first recording played for
the jury, the defendant said of the victim, whom he called “Man Man,” “He got a[n] ass-
whooping from me Monday. . . . He got hit Wednesday night.” The defendant also said,
“Man Man got put out of school that Monday when I whooped him. That’s when he got
put out of school. It’s the same week that he died.” In the second recording, the
defendant stated that he and the co-defendant, the victim’s mother, had “lived together
for a whole year basically.” In the third recording, the defendant said that he “was not
the last one who hit Man Man,” explaining, “And . . . it all happened Wednesday. When
I got home from work. That’s when it happened. Because me and her got to arguing
about something. She took it out on him.” The defendant said that he had not initially
told the police about Ms. Hunter’s involvement, saying, “That’s why I didn’t say nothing
because I love her. . . . I was gonna do life for the girl.”

             Assistant Davidson County Medical Examiner Doctor David Zimmerman,
who performed the autopsy of the victim, testified that the victim’s body was essentially
covered with fresh, healing, and old wounds. The victim had multiple abrasions “on the
forehead, on both cheeks, on the chin and on the bridge of the nose.” The skin on the
                                            -3-
bridge of the victim’s nose, his frenulum, and the skin “on the left side on the inside of
the [lower] lip” all bore lacerations. Doctor Zimmerman noted that the wounds on the
bridge of the victim’s nose were starting to heal, indicating that they had been inflicted
“[h]ours to a couple of days” before the autopsy. Similarly, abrasions on the victim’s
lower lip, chin, and left cheek were “hours to days” old. The injuries to the inside of the
victim’s mouth had “been there a couple of hours” before the victim’s death.

               The skin underneath both of the victim’s eyes was bruised, and Doctor
Zimmerman observed bruises on the victim’s cheek and temple. The victim had
abrasions on his face and behind his ear as well as bruising, abrasions, and a scar
underneath his chin and an abrasion on the left side of the neck. Upon pulling back the
skin of the victim’s head, Doctor Zimmerman found blood between the galea, the layer of
connective tissue “attached right to the skull,” and the bones of the skull “kind of on the
forehead going up onto the scalp” that coincided with “abrasions of the skin” in that same
area. More impact than a simple trip and fall would have been necessary to cause the
subgaleal hemorrhage.

              Doctor Zimmerman observed scarring patterns on the victim’s body that
looked like small dashes as well as scarring above the victim’s right eye and on his
cheek. Doctor Zimmerman observed a contusion on the victim’s chest. Scars on the
upper left quadrant of the victim’s torso “were at least months or weeks old. . . . They
were completely healed.” An abrasion on the tip of the victim’s penis formed the same
small dot pattern as those on other parts of the victim’s body. Doctor Zimmerman
observed an abrasion on the victim’s inner right thigh that formed that same pattern as
well as abrasions, scars, and contusions on the right buttock, right torso, and right arm.
Similar circular contusions also appeared near the victim’s spine.

             Doctor Zimmerman observed “abrasions, contusions, and . . . scars” on the
victim’s back and buttocks, some of which formed a linear pattern. Doctor Zimmerman
explained,

              If a long thin object were used and it struck the skin, it’ll
              press the blood out of the skin right where it hits and it’ll
              cause the capillaries to rupture at the edges and that’ll cause
              the bruising around where the object was hit. And there
              won’t necessarily be any bruising directly where the object
              hit.

Linear abrasions on the right side of the victim’s chest that were “hours to days” old lay
at right angles, indicating that those abrasions were “either two impacts with something
that would abrade the skin or . . . a single impact of something that has a right angle on
                                            -4-
it.” The scars on the victim’s back and buttocks, both the round and the linear, were “all
well-healed scars so weeks to months old.” In addition to these scars, Doctor
Zimmerman found “multiple well-healed scars, weeks to months old,” on the back of the
victim’s legs that appeared to wrap around the backs and sides of the leg; “there were
significantly more on the right leg than on the left.” He also found “some scabbed
abrasions” on the victim’s legs that took the form of “dark dots.” Those were “hours to
days old.” There were abrasions on the left inner thigh, both partially healed and acute,
as well as scarring. The circular pattern contusions also appeared on the back of the
victim’s left leg. Doctor Zimmerman said that the linear contusions on the back of the
victim’s leg were consistent with a long strap-like item striking the skin. Contusions and
scarring also appeared on the back of the victim’s right hand.

              Doctor Zimmerman found contusions and “small little dots of abrasions” on
the abdomen and a variety of abrasions on the abdomen near the belly button. He
observed that the victim’s abdomen was “protuberant which means it’s kind of sticking
out.” Additionally, “some dark discoloration of the abdomen,” indicating a bruise,
aligned to injuries that Doctor Zimmerman found to the victim’s intestines. Upon
internal examination of the victim’s abdomen, Doctor Zimmerman found “about 45
milliliters of serosanguinous fluid and fibrinopurulent debris.” The amount of
serosanguinous fluid, “the same fluid that you would see in a blister on your skin,” inside
the victim’s abdomen was equivalent to “about one and a third cans of soda.”
Fibrinopurulent debris, he explained, is a “stringy, green, thick material that was on the
organs, the surfaces of the organs in the abdomen. And that’s part of the body’s healing
process. It has white blood cells and other proteins to wall off any kind of infection that
would be in the abdomen.” The presence of the serosanguinous fluid and fibrinopurulent
debris indicated that “there was an acute peritonitis in the abdomen. That means there’s
an infection in the abdomen.” When he examined the victim’s intestines, Doctor
Zimmerman found that some of “the loops of the intestines were also stuck together.” He
also observed “bruises on the surfaces of both the small bowel and the colon” as well as
more than one “area of necrosis which means that part was dead tissue. . . . the color
wasn’t right. It was more of a grayish color, and there was also hemorrhage or bleeding
on the serosal surfaces as well.” Doctor Zimmerman testified that the process of necrosis
would have taken “hours or days.”

              Doctor Zimmerman found another 100 milliliters of serosanguinous fluid in
the victim’s chest as well as “plural adhesions, . . . where the outside surface of the lung
is stuck to the chest wall,” that could be attributed to either “some kind of infection or
some sort of injury in the chest.”

           Doctor Zimmerman testified that peritonitis is typically accompanied by
symptoms such as pain in the abdomen, fever, irritability, loss of appetite, vomiting,
                                            -5-
diarrhea, and decreased movement. He said that peritonitis could be caused by “either an
injury or an infection that has spread to the abdomen” and that, to cause peritonitis, an
injury would have “to be a hard enough injury where it can cause a hole in the intestines
or stomach. And then some of those contents spill into the abdominal cavity and then the
body tries to fight off that infection that’s occurring because of that.” He found evidence
that the contents of the victim’s intestines had spilled into the abdominal cavity when
viewing the slides he created using material from the outside of the victim’s intestines.
Upon examining the material microscopically, he “saw some plant material on the
outside of the intestines.” The presence of plant material on the slides was consistent
with the victim’s having an actual injury to his stomach or intestines. He said that both
the injury and the peritonitis would have been treatable with antibiotics and fluids.

               Doctor Zimmerman examined the “white stud belt” recovered from the
apartment and opined that the belt could have made some of the abrasions he found on
the victim’s body and agreed that “the small metal areas on the belt . . . could make round
scars on the skin.” He said that a belt without such studs, “especially if it hit with the
edge of the belt, . . . could make linear contusions.” Doctor Zimmerman testified that the
impact of the knuckles of a closed fist could have made the round contusions he observed
on the victim’s abdomen. He agreed that blunt force to the mouth could have caused the
injuries inside the victim’s mouth.

              Doctor Zimmerman agreed that there were abrasions and contusions across
a majority of the victim’s body but testified that, with prompt medical treatment of the
injuries, the victim could have survived. The failure to obtain prompt medical care
contributed to the victim’s death. Ultimately, he determined the cause of death to be
multiple blunt force trauma.

               During cross-examination, Doctor Zimmerman conceded that he was
unable to identify a tear in the victim’s small intestine, but he said that “there had to have
been one in order for that plant material to be there.” He added that, “[w]ith all the
contusions on the abdomen, some sort of blunt trauma of the abdomen would have
caused” the tear that led to the victim’s death. He acknowledged that “[a]n infection in
the intestines could cause a tear of the abdomen” but said that he “didn’t see any evidence
of that. By infection, I mean like a bacterial or a viral infection inside the intestines. I
didn’t see any evidence of that under the microscope.” Doctor Zimmerman clarified that
the belt with studs on it could have caused “some of the bruising” and “some of those
linear abrasions” but not the internal injuries. He explained, “[I]f a belt were used to
impart that much force on an abdomen to cause those internal injuries, it would leave
more than just superficial abrasions on the skin.” He acknowledged that although a
simple slip and fall would have been insufficient, running into the corner of a table
“could make a deep enough injury to cause a subgaleal hemorrhage.” Finally, he said
                                             -6-
that the fluid in the victim’s lungs could be attributed to the services he received at the
hospital but that it was not “very likely” that any of his injuries were sustained in the
course of treatment.

              Tara Steele-Giles, Director at Gartland Child Development Center (“the
Center”), testified that the victim enrolled in January 2013 and attended somewhat
sporadically until April 22, 2013. Ms. Steele-Giles described the victim as “a very good
kid” who understood enough to follow directions but had difficulty expressing himself.
The victim appeared to have “kind of like a speech problem,” so Ms. Steele-Giles worked
with him one-on-one “to get a little bit of understanding.” She tried to speak with Ms.
Hunter about the victim’s issues “a few times,” but “[a] lot of times it was, you know,
like brush off, like ignore type of thing.” Eventually, however, she spoke to Ms. Hunter
and “arranged to get help for the child.” That help was provided “one time at our facility.
And the other times they could not get in contact with” Ms. Hunter.

              Ms. Steele-Giles recalled that the victim “didn’t want to go” when his
mother came to pick him up and would cling to Ms. Steele-Giles when it got time to
leave, which, in hindsight, “was a red flag.” She said that she did not take any action at
the time because, given his limited ability to communicate, she could not be sure why the
victim did not want to leave. Because the victim was potty trained and attended school in
the winter and spring, Ms. Steele-Giles had no occasion to view the victim’s bare legs.

              The Center did not use corporal punishment, and, on those occasions when
one child harmed another, the Center created an incident report with one copy for the
parents and another for the Center. The victim was involved in incidents on March 25
and 26, 2013, that involved his hitting other children. On one occasion, the victim stood
on a chair and screamed. On another he threw rocks on the playground. On April 4,
2013, the victim was placed in timeout for spitting on the table. The victim’s file
contained no documented cases of the victim’s injuring himself at the Center. After the
victim was absent on April 23, 2013, Ms. Steele-Giles attempted to telephone Ms. Hunter
on April 24, 2013. She left a message but never received a return call.

               Ms. Steele-Giles testified that she interacted often with the defendant,
saying, “If I needed to ask anything, a lot of times Donald would speak for [Ms. Hunter].
And I didn’t think nothing bad because I actually thought he was the father.” She said
that the defendant and Ms. Hunter often arrived together to drop off and pick up the
victim and that Ms. Hunter had listed the defendant’s name in the portion of the
application for naming the victim’s father.




                                            -7-
            Forensic testing on the orange polo shirt and three pieces of belt collected
from the scene established that reddish-brown stains on those items was the victim’s
blood.

              The defendant did not testify but did choose to present proof.

             Nashville Fire Department paramedic Richard Carney testified that he had
no independent recollection of having treated the victim but acknowledged that the report
he prepared following the incident did not include any notation that the victim had a torn
frenulum. During cross-examination, however, Mr. Carney maintained that he could not
have torn the victim’s frenulum during the intubation procedure “because I’m nowhere
near that.”

              Psychologist and professional counselor Bernard Charles Ihrig, who was
tendered as an expert in the field of child psychology, testified that he had reviewed the
victim’s medical records from Vanderbilt, Meharry, and Centerstone. He said that
Meharry Doctor Vanessa Elliott had given the victim a “somewhat provisional” diagnosis
of “potential global developmental delay or other developmental delay” in 2012 based
upon answers provided by the co-defendant. He said that a diagnosis “of global
developmental delay is highly associated with self-injurious behavior.”

              During cross-examination, Doctor Ihrig admitted that he had never seen
any images of the injuries inflicted on the victim and could not make a diagnosis of the
cause of those injuries. He conceded that he did not interview any witnesses. Doctor
Ihrig also admitted that the victim was not ever fully assessed for a developmental delay
and that “[w]hat was done was superficial.” Doctor Ihrig acknowledged that Doctor
Elliot had also given the victim a provisional diagnosis of Oppositional Defiant Disorder,
but Doctor Ihrig chose not to include that diagnosis in his report because it was his
opinion that such a diagnosis was “completely inappropriate” for a child of the victim’s
age. Doctor Ihrig testified that inflicting corporal punishment on a child with a
developmental issue “would exacerbate the symptoms that the child manifests,” causing
“[i]ncreased aggression, more tearfulness, slowed development, . . . lack of
responsiveness to the environment. It would be pretty damaging.”

              In rebuttal, the State offered into evidence a single nurse’s report that was
included in the victim’s medical records from VUMC. The document indicated that the
victim’s frenulum was torn when he arrived at the hospital.

               Based upon this proof, the jury convicted the defendant of one count of
facilitation of aggravated child abuse, three counts of aggravated child abuse, one count
of aggravated child neglect, one count of facilitation of felony murder in the perpetration
                                            -8-
of aggravated child abuse, and one count of felony murder in the perpetration of
aggravated child neglect. The jury found the defendant not guilty of two counts of
aggravated child abuse. Following a sentencing hearing, the trial court imposed a total
effective sentence of life plus 75 years’ imprisonment.

               The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant asserts that the trial court erred
by permitting the State to introduce the document from the victim’s medical record as
rebuttal evidence because the document was not properly authenticated; that the State’s
election of offenses was insufficient to ensure jury unanimity; that the trial court erred by
including “improper language” in its jury instruction regarding criminal responsibility for
the conduct of another; that the evidence was insufficient to support his conviction of
felony murder; and that the sentence is excessive. We consider each claim in turn.

                                    I. Rebuttal Evidence

               The defendant contends that the trial court erred by permitting the State to
introduce as rebuttal evidence a nurse’s report from the victim’s medical records, arguing
that the State failed to comply with Tennessee Rule of Evidence 902 for the admission of
self-authenticating documents by failing to give pretrial notice that it intended to offer the
document into evidence. The State asserts that the defendant waived consideration of this
issue by failing to raise an authentication objection at trial and that, in the alternative, any
error in the admission of this evidence was harmless.

               After the defense closed its proof, the State indicated that it intended to
introduce the nurse’s triage notes from the victim’s arrival at VUMC to show that the
victim had a torn frenulum when he arrived at the hospital. The defendant objected to the
record as irrelevant, noting that there was no evidence of “what happened once he got to
the hospital or how it got torn. There’s nobody here from Vanderbilt to say what the
process was getting him out of the ambulance and how he got to the nurse’s station.” The
court allowed the State to introduce the document without the benefit of a witness, noting
that the document, as part of a medical record accompanied by an affidavit of the records
custodian, was self-authenticating.

              As the State correctly points out, the defendant did not object to the
document or the procedure for its admission on grounds that either violated the terms of
evidence rule 902. Instead, the defendant argued that the document was irrelevant.
Consequently, we agree with the State that the defendant has waived review of this issue.
See State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000) (appellant’s changing
theory on appeal from that espoused at the trial court “constitutes a waiver of the issue”).
Additionally, we agree with the State that, even assuming that the trial court erred by
                                              -9-
admitting the record, the error would have been harmless in light of the evidence of the
defendant’s guilt. This is particularly true given that Mr. Carney did not testify that the
victim did not have a torn frenulum and instead testified that he had not included a torn
frenulum in his notes. Moreover, the injury to the victim’s frenulum, while certainly
painful to the victim, was minor in comparison to the magnitude and multitude of the
other injuries inflicted upon the victim.



                                  II. Election of Offenses

               The defendant, conceding that he failed to lodge a contemporaneous
objection at trial, asserts that the election of offenses provided by the State with regard to
Counts 1, 2, 3, and 6 of the indictment “was insufficiently distinct to [e]nsure that the
jury’s verdict rested on a common set of facts” and that this court should recognize the
error as plain despite his failure to challenge the election at trial. The State contends that
the defendant waived plenary consideration of the issue by failing to challenge the
election at trial and argues that, because the election of offenses was sufficient, the
defendant is not entitled to relief via plain error review.

              At the conclusion of the State’s case-in-chief, the trial court explained the
importance of the State’s election of offenses to the jury: “Because it’s very important
because you have to reach a unanimous verdict. We can’t have you all deciding, well,
maybe this happened or this happened, and it’s all mixed up. We have to know exactly
what it is you’re determining on each count.” The State then read into the record the
following election of offenses:

                     Election of offenses, Count 1 of the indictment alleges
              an act of aggravated child abuse and refers to the following
              conduct: While living with [the victim] between the dates of
              April 20th and April 26th, 2013, the defendant caused fatal
              abdominal trauma to [the victim] including acute bruising to
              his abdomen, and internal laceration, and peritonitis.

                     Count 2 of the indictment alleges an act of aggravated
              child abuse and refers to the following conduct: While living
              with [the victim] between the dates of April 20th, 2013, and
              April 26th, 2013, the defendant caused multiple injuries to the
              head, and mouth, torso, limbs, back, buttocks, and genitals of
              [the victim]. Some of the injuries were pattern shaped and
              consistent with the use of a belt.
                                            -10-
       Count 3 of the indictment alleges an act of aggravated
child abuse and refers to the following conduct: While living
with [the victim] between the dates of April 20th, 2013, and
April 26th, 2013, the defendant caused pattern-shaped injuries
on the body of [the victim] with a belt or other object.

       Count 4 of the indictment alleges an act of aggravated
child abuse and refers to the following conduct: While living
with [the victim] between the dates of October 2nd, 2012, and
April 19th, 2013, the defendant whipped or beat [the victim]
in a manner that resulted in permanent scar marks being left
on his body.

       Count 5 of the indictment alleges an act of aggravated
child abuse and refers to the following conduct: While living
with [the victim] between the dates of October 2nd, 2012, and
April 19th, 2013, the defendant whipped [the victim] with a
belt or unknown object in a manner than resulted in
permanent scar marks being left on his body.

       Count 6 of the indictment alleges an act of aggravated
child abuse and refers to the following conduct: While living
with [the victim] between the dates of October 2nd, 2012, and
April 26th, 2013, the defendant abused [the victim] in a
manner that was especially heinous, atrocious, or cruel, or
involved torture as evidenced by the testimony of Dr. David
Zimmerman, the autopsy report, and multiple photographs.

        Count 7 of the indictment alleges an act of aggravated
child neglect and refers to the following conduct: While
living with [the victim] between the dates of October 2nd,
2012, and April 26th, 2013, the defendant neglected the
welfare of [the victim] on an ongoing basis and failed to seek
prompt medical attention for the fatal abdominal trauma [the
victim] sustained of which the defendant was aware. Delay in
seeking medical attention and overall neglect and care
allowed the infection in the abdomen to progressively worsen
to the point where [the victim] died.



                             -11-
                     Count 8 of the indictment alleges an act of felony
              murder and refers to the following conduct: On or about April
              26th, 2013, [the victim] died as a result of blunt abdominal
              trauma inflicted by the defendant.

                      Count 9 of the indictment alleges an act of felony
              murder and refers to the following conduct: On or about
              April 26th, 2013, [the victim] died from peritonitis from
              abdominal injuries which could have been treated with
              prompt medical attention as evidenced by the testimony of
              Dr. David Zimmerman. Delay in seeking medical attention
              allowed the infection in the abdomen to progressively worsen
              to the point where [the victim] died.

              Within the defendant’s challenge to the State’s election of offenses we
actually perceive two separate but related issues: (1) whether the State’s election of
offenses was sufficient to protect the defendant’s state constitutional right to a unanimous
jury verdict and (2) whether the multiple child abuse convictions in this case violate the
defendant’s state and federal constitutional protections against double jeopardy. We
consider each claim in turn.

                                     A. Jury Unanimity

               When the evidence adduced at trial indicates that the defendant has
committed more offenses against the victim than were charged in the indictment, the
State must elect the facts upon which it intends to rely for each count of the indictment in
order to protect “the defendant’s state constitutional right to a unanimous jury verdict by
ensuring that jurors deliberate and render a verdict based on the same evidence.” State v.
Johnson, 53 S.W.3d 628, 631 (Tenn. 2001); see also State v. Kendrick, 38 S.W.3d 566,
568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton,
958 S.W.2d 724, 727 (Tenn. 1997). The election requirement arises most often when a
defendant is alleged to have performed multiple sexual acts over a lengthy period of time
against young children who are unable to provide the exact date on which any one act
occurred. See, e.g., Johnson, 53 S.W.3d at 631; Brown, 992 S.W.2d at 391-92. “Any
description that will identify the prosecuted offense for the jury is sufficient. In fulfilling
its obligation . . . to ensure that an election occurs, the trial court should bear in mind that
the purpose of election is to ensure that each juror is considering the same occurrence.”
State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993) (internal citations and footnote
omitted).



                                             -12-
               The defendant concedes that he failed to lodge a contemporaneous
objection to the sufficiency of the State’s election of offenses, but he insists that he has
satisfied the requirements for plain error review. Whether properly assigned or not, this
court may, “[w]hen necessary to do substantial justice, . . . consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised
in the motion for a new trial.” Tenn. R. App. P. 36(b). This court will grant relief for
plain error only when:

              (1) the record clearly establishes what occurred in the trial
              court; (2) the error breached a clear and unequivocal rule of
              law; (3) the error adversely affected a substantial right of the
              complaining party; (4) the error was not waived for tactical
              purposes; and (5) substantial justice is at stake; that is, the
              error was so significant that it “probably changed the outcome
              of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying
all five criteria as a prerequisite to plain error review. See id. “Because the election
requirement safeguards a criminal defendant’s fundamental, constitutional right to a
unanimous jury verdict, errors pertaining to the sufficiency of the prosecution’s election
are subject to plain error review.” State v. Knowles, 470 S.W.3d 416, 424 (Tenn. 2015)
(citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1975); Kendrick, 38 S.W.3d at 567;
State v. Walton, 958 S.W.2d 724, 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d 197,
204 (Tenn. Crim. App. 1995)). “When applying plain error review,” in the context of a
challenge to the State’s election of offenses, the reviewing court “must bear in mind that
the election requirement is merely a means by which to protect the right to a unanimous
verdict. There is no right to a perfect election, and . . . the election requirement may be
satisfied in a variety of ways.” Knowles, 470 S.W.3d at 424. Importantly, “the election
requirement applies to offenses, not to the facts supporting each element of the offense.”
Id.

             In this case, the defendant was charged in Counts 1 thru 6 with aggravated
child abuse. Code section 39-15-402 defines that offense:

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

              (1) The act of abuse . . . results in serious bodily injury to the
              child;
                                            -13-
             (2) A deadly weapon, dangerous instrumentality, controlled
             substance or controlled substance analogue is used to
             accomplish the act of abuse . . .;

             (3) The act of abuse . . . was especially heinous, atrocious or
             cruel, or involved the infliction of torture to the victim; or

                    ....

                    ....

             (c) “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 and acts of
             female genital mutilation as defined in § 39-13-110.

             (d) A “dangerous instrumentality” is any item that, in the
             manner of its use or intended use as applied to a child, is
             capable of producing serious bodily injury to a child, as
             serious bodily injury to a child is defined in this section.

T.C.A. § 39-15-402(a), (c), (d). Code section 39-15-401 defines the offense of child
abuse:

             (a) 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 Class A misdemeanor;
             provided, however, that, if the abused child is eight (8) years
             of age or less, the penalty is a Class D felony.

T.C.A. § 39-15-401(a).

             A reading of the State’s election of offenses establishes that the State
attempted to differentiate between the six counts of child abuse charged in this case by
using both the injuries inflicted upon the victim and the modalities used to inflict those

                                           -14-
injuries. Thus, the record clearly indicates what happened in the trial court, the first
prerequisite to plain error review. See Knowles, 470 S.W.3d at 425.

              Doctor Zimmerman testified that the victim’s abdominal injury could not
have been caused by the victim’s having been struck by a belt. Similarly, the evidence
established that the injury to the victim’s head that caused the subgaleal hemorrhage was
not caused by a belt. In light of this evidence, the method of differentiation utilized by
the State was sufficient to ensure that the jurors utilized the same set of factors to convict
the defendant of aggravated child abuse as charged in Count 2 (injury “to the head, and
mouth, torso, limbs, back, buttocks, and genitals” only some of which “were pattern
shaped and consistent with the use of a belt”) and Count 3 (“the defendant caused
pattern-shaped injuries . . . with a belt or other object) and of facilitation of aggravated
child abuse in Count 1 (“fatal abdominal trauma including acute bruising to his abdomen,
and internal laceration, and peritonitis”). Count 7, which charged aggravated child
neglect for the defendant’s failure to seek medical attention for the victim’s abdominal
injury, was likewise sufficiently distinguishable from the other charged offenses.
Because no error attends the State’s election of offenses for Counts 1, 2, 3, and 7, the
defendant cannot establish the remaining prerequisites to plain error review. See id.

               The election for Count 6, however, contains no set of facts upon which the
State intended the jury to rely for the conviction in that count, and no evidence would
support that conviction that would not also support the convictions in Counts 1, 2, and 3.
Instead, that election limits the jury’s consideration to the defendant’s abusing the victim
“in a manner that was especially heinous, atrocious, or cruel, or involved torture as
evidenced by the testimony of Dr. David Zimmerman, the autopsy report, and multiple
photographs.” As indicated, Doctor Zimmerman’s testimony established that the victim
suffered a variety of injuries across the whole of his body and that the injuries were
inflicted at different times. Because the time frame alleged in Count 6 is broader than
that alleged in Counts 1-3, the jury could have rested its verdict in that count upon the
victim’s older injuries. Such a conclusion, however, would be speculative, at best, given
that the State’s election for Count 6 did not direct the jury’s attention to the victim’s older
injuries. Instead, the State’s election for Counts 4 and 5 specifically directed the jury’s
attention to the victim’s older injuries. Under these circumstances, the election for Count
6 contained insufficient information, such as a specific date, modality of abuse, or
significant detail to allow the jury to differentiate the act of abuse alleged in that count
from the offenses described in Counts 1, 2, and 3.

              Moreover, this is not a situation in which a general verdict of guilty of
multiple offenses is supported by “general evidence” of a pattern of abuse. In State v.
Qualls, our supreme court held

                                             -15-
             that in generic evidence cases the prosecution need not elect a
             specific criminal act or incident as the basis of a conviction
             for each charge. Instead, the election doctrine may be
             satisfied in generic evidence cases by the trial court[’s]
             providing a modified unanimity instruction that allows a
             conviction only if the jury unanimously agrees the defendant
             committed all the acts described by the victim.

State v. Qualls, 482 S.W.3d 1, 17 (Tenn. 2016). Although the evidence arguably
established that either the defendant or Ms. Hunter, or both, abused the victim over a
period of time, the State did not ask the trial court for a modified unanimity instruction.
Additionally, the jury acquitted the defendant of the charges in Counts 4 and 5 and
convicted him of the lesser included offense of facilitation in Counts 1 and 8, indicating
that this is not a “generic evidence” case for which an election was not necessary.

               The State’s election did not contain sufficient information to safeguard the
defendant’s state constitutional right to a unanimous verdict in Count 6, which error
“breached a clear and unequivocal rule of law” and “adversely affected a substantial
right” of the defendant. Knowles, 470 S.W.3d at 425. Additionally, no evidence suggests
that the defendant waived the error for tactical purposes. Finally, based upon the
foregoing analysis, we conclude that the deficiency in the election for Count 6 was not
harmless beyond a reasonable doubt, see State v. Shelton, 851 S.W.2d 134, 137-38 (Tenn.
1993), but was, instead, “so significant that it ‘probably changed the outcome of the
trial,’” Knowles, 470 S.W.3d at 425 (citations omitted). Consequently, we reverse the
defendant’s conviction of aggravated child abuse in Count 6 and remand that count for a
new trial. Upon retrial, the State must take pains to confine the proof to a single set of
facts different from those used to support the convictions in Counts 1-3 in order to avoid
violating principles of double jeopardy.

                                   B. Double Jeopardy

              Within the defendant’s challenge to the election of offenses, we recognize a
claim that the State’s election of offenses failed to protect him against double jeopardy.
Again, because the defendant failed to raise the issue below, we must determine whether
any error can be classified as plain.

              Both the federal and state constitutions protect an accused from being
“twice put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V;
Tenn. Const. art. 1, sec. 10. The state and federal provisions, which are quite similar in
verbiage, have been given identical interpretations. See State v. Waterhouse, 8 Tenn. (1
Mart. & Yer.) 278, 284 (1827) (“[W]e did not feel ourselves warranted in giving [the
                                           -16-
double jeopardy provision of the state constitution] a construction different from that
given to the constitution of the United States, by the tribunal possessing the power, (and
of pre-eminent qualifications) to fix the construction of that instrument.”). The United
States Supreme Court has observed of the double jeopardy clause:

              Our cases have recognized that the Clause embodies two
              vitally important interests. The first is the “deeply ingrained”
              principle that “the State with all its resources and power
              should not be allowed to make repeated attempts to convict
              an individual for an alleged offense, thereby subjecting him to
              embarrassment, expense and ordeal and compelling him to
              live in a continuing state of anxiety and insecurity, as well as
              enhancing the possibility that even though innocent he may
              be found guilty.” The second interest is the preservation of
              “the finality of judgments.”

Yeager v. United States, 557 U.S. 110, 117-18 (2009) (citations omitted). To these ends,
our state supreme court has observed that the Double Jeopardy Clause provides “three
separate protections: (1) protection against a second prosecution for the same offense
after acquittal; (2) protection against a second prosecution for the same offense after
conviction; and (3) protection against multiple punishments for the same offense.” State
v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

              The defendant’s claim involves the third category of double jeopardy
protection, multiple punishments for a single offense. “[I]n single prosecution cases, the
double jeopardy prohibition against multiple punishments functions to prevent
prosecutors and courts from exceeding the punishment legislatively authorized.” Id. at
542. Claims of this type “ordinarily fall into one of two categories, frequently referred to
as ‘unit-of-prosecution’ and ‘multiple description’ claims.” Id. at 543. So-called “unit-
of-prosecution” claims arise “when defendants who have been convicted of multiple
violations of the same statute assert that the multiple convictions are for the ‘same
offense.’” Id. Reference to the test developed in Blockburger v. United States, that is,
“where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not,” see
Blockburger v. United States, 284 U.S. 299, 304 (1932), is not necessary when multiple
violations of a single statutory provision have been alleged. Instead, “[w]hen addressing
unit-of-prosecution claims, courts must determine ‘what the legislature intended to be a
single unit of conduct for purposes of a single conviction and punishment.’” Watkins,
362 S.W.3d at 543 (citations omitted). To determine the appropriate unit of prosecution,
“we first examine the statute in question to determine if the statutory unit of prosecution
                                            -17-
has been expressly identified.” State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014)
(citations omitted). “If the unit of prosecution is clear from the statute, there is no need to
review the history of the statute and other legislative history.” State v. Hogg, 448 S.W.3d
877, 886 (Tenn. 2014). If the unit of prosecution is not clear from the plain language of
the statute, “we review the history of the statute. Finally, we perform a factual analysis
as to the unit of prosecution.” Smith, 436 S.W.3d at 768. A reviewing court must “apply
the ‘rule of lenity’ when resolving unit-of-prosecution claims, meaning that any
ambiguity in defining the unit of conduct for prosecution is resolved against the
conclusion that the legislature intended to authorize multiple units of prosecution.”
Watkins, 362 S.W.3d at 543 (citations omitted).

              Whether multiple convictions violate double jeopardy principles is a mixed
question of law and fact that we review de novo with no presumption of correctness.
Smith, 436 S.W.3d at 766 (Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840, 846
(Tenn. 2009)).

               As charged in this case, aggravated child abuse is child abuse when “(1)
[t]he act of abuse, neglect or endangerment results in serious bodily injury to the child;
[or] (2) [a] deadly weapon, dangerous instrumentality, controlled substance or controlled
substance analogue is used to accomplish the act of abuse, neglect or endangerment.”
T.C.A. § 39-15-402(a)(1)-(2). In State v. Thomas Bethel Hendrix, following an
examination of the applicable statutes, this court concluded:

              Like the aggravated assault statute, we conclude that the
              aggravated child abuse statute focuses on the act resulting in
              injury and that the legislature did not intend for defendants
              charged with aggravated child abuse to be punished
              separately for each individual injury. Instead, the unit of
              prosecution is the act that caused the injury.

State v. Thomas Bethel Hendrix, No. M2017-00386-CCA-R3-CD, slip op. at 23 (Tenn.
Crim. App., Nashville, May 14, 2019). We agree with this analysis and conclude that the
proper unit of prosecution for aggravated child abuse offenses is “the act of abuse” rather
than the injury inflicted.

              Applying “the act of abuse” as the unit of prosecution, we consider whether
the convictions in Counts 1-3, viewed in light of the State’s election of offenses, violated
double jeopardy principles. As stated above, the State’s election of offenses for Count 1
limited the jury’s consideration to the act of abuse that caused the abdominal injury that
eventually led to the victim’s death. Because Doctor Zimmerman testified that this injury
could not have been caused by the victim’s having been struck by a belt or other object,
                                             -18-
the act of abuse that caused the fatal abdominal injury was a separate and distinct act
from the acts of abuse alleged in Counts 2 and 3. Nothing, however, suggests that the
acts alleged in Counts 2 and 3 were separate, distinct acts of abuse. Instead, the two
counts charge the same act of abuse via different modalities, with Count 2 charging
aggravated child abuse via the “serious bodily injury” aggravator, see T.C.A. § 39-15-
402(a)(1), and Count 3 charging aggravated child abuse via the “dangerous
instrumentality” aggravator, see id. § 39-15-402(a)(2). Consequently, dual convictions
for aggravated child abuse in Counts 2 and 3 violate double jeopardy principles, and the
imposition of dual convictions for these offenses rises to the level of plain error.

              The remedy, however, is not dismissal of one of the counts or a remand for
a new trial but a merger of the jury verdicts for those counts. See Thomas Bethel
Hendrix, slip op. at 21 (“It is well settled in Tennessee that, under certain circumstances,
two convictions or dual guilty verdicts must merge into a single conviction to avoid
double jeopardy implications.” (quoting State v. Berry, 503 S.W.3d 360, 362 (Tenn.
2015)). Although the sentences for the defendant’s convictions in Counts 2 and 3 are
aligned concurrently, the Supreme Court has held that where separate convictions violate
double jeopardy principles because the legislature has not authorized multiple
punishments, the imposition of concurrent sentences does not alleviate the violation:

              “The second conviction, whose concomitant sentence is
              served concurrently, does not evaporate simply because of the
              concurrence of the sentence. The separate conviction, apart
              from the concurrent sentence, has potential adverse collateral
              consequences that may not be ignored. For example, the
              presence of two convictions on the record may delay the
              defendant’s eligibility for parole or result in an increased
              sentence under a recidivist statute for a future offense.
              Moreover, the second conviction may be used to impeach the
              defendant’s credibility and certainly carries the societal
              stigma accompanying any criminal conviction. See Benton v.
              Maryland, 395 U.S. 784, 790-791 (1969); Sibron v. New
              York, 392 U.S. 40, 54-56 (1968).          Thus, the second
              conviction, even if it results in no greater sentence, is an
              impermissible punishment.”

Rutledge v. United States, 517 U.S. 292, 302 (1996) (quoting Ball v. United States, 470
U.S. 856, 864-65 (1985)). In consequence, we remand the case for the entry of corrected
judgment forms for Counts 2 and 3 reflecting the merger of these convictions.1

1
       Although the defendant mentions in passing the effect of the State’s election of offenses on his
                                                -19-
                             III. Criminal Responsibility Instruction

              The defendant asserts that the trial court erred by including “improper
language” in its jury instruction regarding criminal responsibility for the conduct of
another. Specifically, he argues that the trial court should not have provided a jury
instruction regarding the theory of criminal responsibility found in Code section 39-11-
402(3) because no proof established that he stood in loco parentis to the victim. The
State contends that the instruction was appropriate.

               The defendant’s constitutional right to trial by jury, see U.S. Const. amend.
VI; Tenn. Const. art. 1, § 6, encompasses the right to a correct and complete charge of the
law, see State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). To this end, the trial court has
a duty “to give a complete charge of the law applicable to the facts of a case.” State v.
Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. The legal
accuracy of the trial court’s instructions is a question of law subject to de novo review.
See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007). The propriety of a
given instruction in a given case is a mixed question of law and fact to be reviewed de
novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.
2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001). A jury instruction may be
classified as “prejudicially erroneous” only “if it fails to fairly submit the legal issues or
if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995);
Graham v. State, 547 S.W.2d 531 (Tenn. 1977)).

             At trial, the State asked the trial court to instruct the jury on the theories of
criminal responsibility for the conduct of another found in Code sections 39-11-402(2)
and (3), which provided:

                A person is criminally responsible for an offense committed
                by the conduct of another, if:

                        ....

                (2) Acting with intent to promote or assist the commission of
                the offense, or to benefit in the proceeds or results of the

convictions of felony murder in Count 9 and facilitation of felony murder in Count 8, we note that our
supreme court has specifically held “that the legislative intent to allow cumulative punishment” for
aggravated child abuse or neglect and felony murder in the perpetration of those offenses “is clear. . . .
and that dual convictions are permissible in this context.” State v. Godsey, 60 S.W.3d 759, 778 (Tenn.
2001).
                                                  -20-
             offense, the person solicits, directs, aids, or attempts to aid
             another person to commit the offense; or

             (3) Having a duty imposed by law or voluntarily undertaken
             to prevent commission of the offense and acting with intent to
             benefit in the proceeds or results of the offense, or to promote
             or assist its commission, the person fails to make a reasonable
             effort to prevent commission of the offense.

T.C.A. § 39-11-402(2)-(3). The defendant did not object to an instruction pursuant to
subsection (2) but did object to the criminal responsibility instruction based upon his
having “voluntarily undertaken a duty to protect the child by assuming the role of
custodian.” He argued, as he does on appeal, that the State had not presented any
evidence to establish that he had voluntarily undertaken the role of caretaker. The trial
court disagreed and instructed the jury as follows:

                    The defendant is criminally responsible as a party to an
             offense if the offense was committed by the defendant’s own
             conduct, by the conduct of another for which the defendant is
             criminally responsible, or by both. Each party to the offense
             may be charged with the commission of the offense.

                     The defendant is criminally responsible for an offense
             committed by the conduct of another if, acting with the intent
             to promote or assist the commission of the offense, or to
             benefit in the proceeds or results of the offense, the defendant
             solicits, directs, aids, or attempts to aid another person to
             commit the offense.

                     The defendant is criminally responsible for an offense
             committed by the conduct of another if, having a duty
             imposed by law or voluntarily undertaken to prevent
             commission of the offense and acting with intent to benefit in
             the proceeds or results of the offense, or to promote or assist
             its commission, the defendant fail[s] to make a reasonable
             effort to prevent commission of the offense.

                    Mere presence is not sufficient to find a defendant
             guilty for being criminally responsible for an offense
             committed by the conduct of another. However, presence of
             the defendant is not required. Before you find the defendant
                                           -21-
              guilty of being criminally responsible for the conduct of
              another, you must find that the essential elements have been
              proven by the State beyond a reasonable doubt.

             The trial court’s instruction was legally accurate, as the defendant
concedes, so we turn to the propriety of its administration under the facts of this case.

              “[C]riminal responsibility is not a separate, distinct crime” but is instead “a
theory by which the State may prove the defendant’s guilt of the alleged offense . . .
based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999). Criminal responsibility “is a codification of the common-law theories of
aiding and abetting and accessories before the fact.” Id. at 171 (citing State v. Carson,
950 S.W.2d 951, 955 (Tenn. 1997)). “No particular act need be shown, and the
defendant need not have taken a physical part in the crime in order to be held criminally
responsible.” State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002). Criminal
responsibility “requires that a defendant act with a culpable mental state, [i.e.], the ‘intent
to promote or assist the commission of the offense or to benefit in the proceeds or results
of the offense.’” Carson, 950 S.W.2d at 954 (quoting T.C.A. § 39-11-402(2) (1991)).

              For criminal liability to attach under a theory of criminal responsibility
based upon the failure to prevent commission of the crime, the State must establish that
the defendant had a legal, as opposed to moral, duty to prevent the offense. Such a duty
may be imposed by law or voluntarily assumed. See T.C.A. § 39-11-402(3). Generally,
a person who “has assumed the traditional obligations of a parent without a formal
adoption,” is said to stand in loco parentis, or “in the place of a parent.” State v.
Sherman, 266 S.W.3d 395, 405 (Tenn. 2008) (quoting Geibe v. Geibe, 571 N.W.2d 774,
780-81 (Minn. Ct. App. 1997)). “When one establishes an in loco parentis relationship,
that person assumes both duties and interests with regard to a child.” Sherman, 266
S.W.3d at 406 (citing Vol. State Life Ins. Co. v. Pioneer Bank, 327 S.W.2d 59, 62 (Tenn.
Ct. App. 1959)). The key element to determining the application of the doctrine “is one
of intent—whether the adult intended to assume parental duties.” See Sherman, 266
S.W.3d at 406 (citations omitted). “A fact-finder may infer intent from circumstantial
evidence,” see id. (citing McConnico v. Third Nat’l Bank, 499 S.W.2d 874, 885 (Tenn.
1973)), “whether a person had the intent to establish an in loco parentis relationship may
include the child’s age, the child’s dependence upon the person claimed to be in loco
parentis, and whether that person supports the child and exercises the duties and
obligations of a natural parent,” see Sherman, 266 S.W.3d at 406-07 (citing Gritzner v.
Michael R., 611 N.W.2d 906, 919-20 (Wis. 2000)).

            The defendant contends that the State failed to establish that he voluntarily
assumed a duty to prevent the abuse of the victim in this case. The evidence adduced at
                                             -22-
trial, however, established that the defendant assumed the role of the victim’s father. His
name was listed in the father’s portion of the victim’s school enrollment form, and Ms.
Steele-Giles testified that she communicated most often with the defendant regarding the
victim’s behavior at school. The defendant was present for school drop off and pick up,
and, as evidenced by the recorded telephone conversations, he undertook the discipline of
the victim by spanking him. On the day of the victim’s death, the defendant went to the
store to get juice for the victim and helped Ms. Hunter bathe the victim. Under these
circumstances, the trial court properly instructed the jury on the law of criminal
responsibility.

                                       IV. Sufficiency

              The defendant also challenges the sufficiency of the convicting evidence
for his conviction of felony murder in the perpetration of aggravated child neglect and his
conviction of facilitation of felony murder in the perpetration of aggravated child abuse.
He argues that the error relative to the election of offenses for Counts 1-3 and 6-7 “calls
into question the basis for conviction in counts 8 and 9,” asserting that “[i]f the jury could
not be certain [of] the facts that led to the conviction . . . as it relates to the underlying
felony murder convictions, then the convictions for the felony murder counts are,
themselves, infirm as well.” He also contends that the “erroneous jury instruction” on
criminal responsibility “makes the convictions in Counts 8 and 9 infirm,” claiming that
“if [the defendant’s] criminal responsibility for the conduct of Ms. Hunter, as assigned to
him improperly by the trial court, is the basis, then it is an erroneous basis for convictions
in Counts 8 and 9.” The State asserts that the evidence is sufficient.

               Initially, we note that the defendant failed to support his argument with
either citations to the record or relevant authorities. In consequence, he has waived our
consideration of his challenge to the sufficiency of the evidence. See Tenn. Ct. Crim.
App. R. 10(b). Moreover, the defendant’s challenge is not so much a challenge to the
sufficiency of the convicting evidence as it is a repetition of the arguments already made
coupled with the defendant’s attempt to shoehorn those claims into a sufficiency
challenge. Finally, and perhaps most importantly, the record establishes that the evidence
adduced at trial was more than sufficient to support the defendant’s convictions of
facilitation of felony murder in the perpetration of aggravated child abuse and felony
murder in the perpetration of aggravated child neglect.

              Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh
                                            -23-
the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes,
331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the
credibility of the witnesses, the weight and value of the evidence, and the factual issues
raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the
evidence contained in the record as well as all reasonable and legitimate inferences which
may be drawn from the evidence. Id.

                  The defendant was charged in Count 8 with felony murder in the
perpetration of aggravated child abuse and in Count 9 with felony murder in the
perpetration of aggravated child neglect. T.C.A. § 39-13-202(a)(2) (“First degree murder
is . . . [a] killing of another committed in the perpetration of or attempt to perpetrate . . .
aggravated child abuse, aggravated child neglect . . . .”). The jury convicted him as
charged of felony murder in Count 9 but of the lesser included offense of facilitation of
felony murder in Count 8.

               The three-year-old victim was beaten to death. Doctor Zimmerman’s
testimony and the photographs admitted into evidence established that the victim’s small
body was covered in bruises, abrasions, and scars that evinced an ongoing period of
abuse. Doctor Zimmerman testified that small-dot patterned injuries could have been
inflicted by the white stud belt that was found to be stained with the victim’s blood.
Linear pattern bruises and abrasions could have been inflicted by a belt. A bruise to the
victim’s abdomen appeared to match the pattern of a closed fist, and Doctor Zimmerman
testified that the victim’s peritonitis was the result of a blow severe enough to create a
tear in the victim’s intestines or stomach. The evidence established that the defendant
and Ms. Hunter were alone with the victim when he died, and the defendant admitted in a
telephone call that he had “whooped” the victim and that the victim had been hit “on
Wednesday.” This evidence was sufficient to support the defendant’s convictions either
as the principal offender, or as criminally responsible for the conduct of Ms. Hunter, and
the jury was not required to specify which.

                                       V. Sentencing

              The defendant asserts that the total effective sentence of life plus 75 years is
excessive, arguing that the trial court misapplied certain enhancement factors and
erroneously concluded that consecutive sentences were warranted in this case. The State
contends that the sentence was warranted.

             Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
                                             -24-
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The standard of review adopted in
Bise “applies similarly” to the imposition of consecutive sentences, “giving deference to
the trial court’s exercise of its discretionary authority to impose consecutive sentences if
it has provided reasons on the record establishing at least one of the seven grounds listed
in Tennessee Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851,
861 (Tenn. 2013).

               In State v. Wilkerson, the supreme court held that the trial court must find
that consecutive sentences are reasonably related to the severity of the offenses
committed and are necessary to protect the public from further criminal conduct before
utilizing the “dangerous offender” category to impose consecutive sentencing, see State
v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), and “[t]he adoption of the abuse of
discretion standard with the presumption of reasonableness has not eliminated this
requirement,” Pollard, 432 S.W.3d at 863.

              The only live testimony at the sentencing hearing came from the
defendant’s sister, Victoria Harris, who testified that the defendant was one of 21
children and that he had been placed in remedial classes in school. She added, “And I
only know that because half of us was in remedial classes, which basically just means
that we couldn’t learn on a task like everyone else so we was put in a special class so we
could learn at our own pace.”

               In arriving at the individual terms of imprisonment, the trial court applied
enhancement factor (1), that the defendant had criminal convictions in addition to those
necessary to establish the appropriate range, and factor (8), that the defendant failed to
comply with a sentence involving release into the community, to all of the defendant’s
convictions in this case. See T.C.A. § 40-35-114(1), (8). The court applied enhancement
factor (2), that the defendant was a leader in the commission of the offenses, to the
convictions in Counts 2, 3, 6, and 7. See id. § 40-35-114(2). The court found that the
victim was particularly vulnerable due to his mental disabilities and applied enhancement
factor (4) to all but the conviction of felony murder in Count 9. Finally, the court found
that the defendant abused a position of private trust when committing the offenses in
Counts 1-3 and 6 and applied enhancement factor (14) to the sentences for those
convictions. The court found that no mitigating factors applied.
                                             -25-
               The trial court also ordered partially consecutive sentencing based upon its
finding that the defendant was a dangerous offender:

                      When you consider what we heard about this child’s
              life, the fact that he was severely beaten and if you look at
              those pictures more than Monday through Friday, this went
              on for a very long time. That child died a very painful death.
              It was especially heinous, atrocious, and cruel. It involved
              the infliction of torture to that child. And even while he was
              dying he was not taken to a hospital, though, [the defendant]
              did try to give CPR long after it was too late. I find that . . .
              some consecutive sentences in this case is appropriate
              because I find that an aggregate term of consecutive sentence
              reasonably relates to the severity of the offenses. And it’s
              necessary in order to protect the public from further serious
              criminal conduct of the defendant. So he has a life sentence
              plus. On Counts 1, 2, and 3 those are going to run concurrent
              with each other because they are involving the same kind of
              set of things or just a different version of the aggravated child
              abuse. Counts 6 and 7, however, are child abuse. Count 6 is
              the . . . heinous, atrocious, and cruel involving the infliction
              of torture. That’s going to be consecutive to counts 1, 2, and
              3. Count 7 is going to be consecutive, the aggravated child
              neglect, . . . and then Count 8 is going to merge with Count 9.
              So we have a total of life plus seventy-five years. The
              seventy-five years will be at eighty-five percent.

The court imposed the following sentences:

 Count     Sentence                                 Alignment
 1         12 years                                 Concurrent with Counts 2 and 3
                                                    Consecutive to Count 9
 2         25 years                                 Concurrent with Counts 1 and 3
                                                    Consecutive to Count 9
 3         25 years                                 Concurrent with Counts 1 and 2
                                                    Consecutive to Count 9
 6         25 years                                 Consecutive to Counts 1-3 and 9
 7         25 years                                 Consecutive to Counts 1-3, 6, and 9
 8         25 years                                 Merged with Count 9
 9         Life
                                            -26-
              With regard to the application of the enhancement and mitigating factors,
we conclude that the trial court did not abuse its discretion. The factual findings
supporting the court’s application of the factors are fully supported by the record. With
regard to the imposition of consecutive sentences, we similarly conclude that the trial
court did not abuse its discretion. The court, noting the temporal duration and physical
severity of the abuse inflicted upon the victim, made the necessary findings under
Wilkerson to impose consecutive sentences based upon the defendant’s status as a
dangerous offender.

                                        Conclusion

               Based upon the foregoing analysis, we affirm the defendant’s convictions
and the accompanying sentences in Counts 1 (facilitation of aggravated child abuse), 2
(aggravated child abuse), 3 (aggravated child abuse), 7 (aggravated child neglect), 8
(facilitation of felony murder in the perpetration of aggravated child abuse), and 9 (felony
murder in the perpetration of aggravated child neglect). We also affirm the imposition of
consecutive sentences. Because the defendant’s convictions in Counts 2 and 3 violate
double jeopardy principles, the trial court must enter corrected judgment forms reflecting
that those convictions are merged. Because the State’s election of offenses for Count 6
was insufficient to ensure jury unanimity for that count of the indictment, the defendant’s
conviction of aggravated child abuse in Count 6 is reversed and remanded for a new trial.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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