         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 16, 2002 Session

        STATE OF TENNESSEE v. VENITA MICHELLE BURCHELL

                    Appeal from the Criminal Court for Davidson County
                           No. 99-D-3069    Seth Norman, Judge



                  No. M2001-02153-CCA-R3-CD - Filed November 13, 2002


Venita Michelle Burchell appeals from her aggravated child abuse and criminally negligent homicide
convictions. Her convictions result from a jury trial in the Davidson County Criminal Court
pertaining to fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen months old at the
time of his death. Ms. Burchell urges us to find error in the lower court’s acceptance of the verdict,
the admission of prior bad act evidence, and the limiting of defense expert testimony. Because no
harmful error occurred, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ALAN E. GLENN, JJ., joined.

Edward S. Ryan, Nashville, Tennessee, for the Appellant, Venita Michelle Burchell.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Katrin Miller and Philip Wehby, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

                                             OPINION

               During the last few months of his brief life, sixteen-month-old Nicholas Boyd
Cotton’s care was entrusted to the defendant while Nicholas’ parents were at work. Nicholas’ father,
Jonathan Cotton, worked with the defendant’s husband, and through this acquaintance Nicholas’
parents agreed to hire the defendant to babysit Nicholas during working hours. The defendant kept
Nicholas in her apartment, and her own two children were also present daily.

              On the morning of November 17, 1999, Jonathan Cotton took his wife, Rachelle
Cotton, to work, and while he was gone from their apartment, his brother and sister-in-law, David
and Christy Cotton, cared for Nicholas. David and Christy Cotton were temporarily residing with
Jonathan and Rachelle Cotton, and they babysat Nicholas in Jonathan and Rachelle Cotton’s
apartment. After taking his wife to work, Jonathan Cotton returned to the apartment, gathered
Nicholas and his belongings, took Nicholas to the defendant’s apartment, and departed at about 8:15
for his job as a maintenance technician at the apartment complex. According to all four of the adult
Cottons, Nicholas did not display any out-of-the-ordinary behavior before he left the Cotton
apartment that morning.

                Sometime between 9:00 and 9:45 a.m., the defendant summoned her husband, David
Burchell, to return to their apartment. Within about five minutes, Mr. Burchell summoned Jonathan
Cotton to the apartment. When Mr. Cotton arrived, Mr. Burchell was holding Nicholas, who was
gasping for air and unconscious. Emergency personnel arrived within minutes and transported
Nicholas to Vanderbilt Hospital, where doctors diagnosed significant closed head injuries. Nicholas’
situation worsened, and he was eventually pronounced brain dead. Life support was terminated on
November 21, 1999, and Nicholas died.

               Detective Ron Carter of the Metro Police Department spoke with the defendant on
the day of Nicholas’ injuries. The defendant told Detective Carter that immediately prior to
Nicholas’ injuries, he had been throwing a temper tantrum, and she made him stand in a corner in
the living room while she went into the kitchen. As she was returning to the living room, he
“[t]hrew himself back and hit his head” on the carpeted floor. She went to check on him, and he was
blinking and looking at the ceiling. She described him as “dazed.” She claimed that she picked him
up, and within a minute he started vomiting. At first she thought he was having a seizure. The
defendant repeatedly denied that she hit Nicholas. Upon further questioning by Detective Carter,
the defendant eventually admitted that she “made him sit down . . . probably a little roughly.” She
maintained at first that she did not know how Nicholas had been bruised in and behind his ear, but
she eventually admitted that she had “grabbed his face by his ears” when she was “trying to talk to
him, trying to make him look at [her] to calm down.” She claimed that she made him sit down “by
his ears.” She eventually conceded that she might have brought her hand up too hard. Also, she
admitted that she was angry at the time.

                 At trial, the state presented the testimony of Rachelle and Jonathan Cotton, Nicholas’
parents. They testified generally to their son’s pleasant disposition and the absence of anything out
of the ordinary with respect to his health and disposition on the date in question. Mrs. Cotton
testified that she and her husband had not authorized the defendant to discipline Nicholas by putting
him in “time out,” and upon learning that the defendant had done so on a prior occasion, she and her
husband told the defendant not to do it again.

                 Christine Kristufek, a pediatric nurse practitioner employed by Gallatin Children’s
Clinic, testified that Nicholas had been seen in that office regularly for well-child visits, the last
occasion being in October 1999. He was a healthy, normal child. There was no record of any prior
trauma.

              The state also presented the testimony of Christy and David Cotton, who were living
with Rachelle and Jonathan Cotton and had babysat Nicholas briefly before Jonathan Cotton took


                                                 -2-
Nicholas to the defendant’s house that morning. Their testimony was that Nicholas appeared normal
and healthy at that time.

                 Doctor Mark Thomas Jennings, a pediatric neurologist and one of Nicholas’ attending
physicians following his injuries, testified Nicholas suffered a coup injury to or around the left ear,
and then, the right side of the head impacted against an object, causing a contracoup injury. This
jarred the brain within the head and caused tissue around the brain to bleed and produced bleeding
in the retina. Nicholas’ retinal injuries were indicative of an acceleration/deceleration injury,
wherein the head is thrown forward and suddenly stopped by an object. In the absence of a history
of a motor vehicle injury, which would normally be associated with an injury of this nature, this type
of injury is indicative of a very significant non-accidental trauma. The history that Dr. Jennings had
of Nicholas falling onto a carpeted floor from a high chair was not consistent with the magnitude of
the injury.

                 Doctor Joseph Gigante, a pediatrician who treated Nicholas following his injuries,
testified that Nicholas had injuries consistent with blunt force trauma to the head. He had a subdural
hematoma, a common injury in child abuse victims, and he had symptoms consistent with shaken
impact syndrome, which refers to the shaking of a child in combination with the child’s head coming
into contact with a static object. According to Dr. Gigante, Nicholas’ injuries were not consistent
with a history of falling from a high chair or onto a carpeted floor. Doctor Gigante, along with
Nicholas’ other treating physicians, concluded that the child probably received a blow to the left side
of his head, with his brain bouncing off the right side of his head, thereby causing the injuries.
Retinal hemorrhages like those Nicholas had, in the absence of trauma or other medical problems,
almost invariably indicate child abuse. Doctor Gigante testified that he could not imagine that
Nicholas was asymptomatic for a couple of hours following his injuries. Doctor Gigante opined that
Nicholas had been a victim of child abuse.

                Doctor John Gerber, a forensic pathologist, testified that he performed an autopsy on
Nicholas. Based on that examination, he determined that the cause of death was multiple blunt force
injuries to the head. He testified in detail about the various injuries Nicholas sustained, and he
opined that they were not consistent with Nicholas having fallen backwards and having hit his head
on a carpeted floor. Rather, some other significant force would have been required to create injuries
of the magnitude exhibited. He further opined that injuries of this magnitude would cause immediate
symptoms, and there was not a possibility of even a one to two hour delay in the onset of symptoms.

               Catherine Norris, a neighbor of the defendant, testified over defense objection that
one month prior to the date on which Nicholas was injured, she had witnessed the defendant walking
up the sidewalk to her apartment with the victim and two little girls. Once inside the open doorway
of her apartment, the defendant repeatedly “hit” Nicholas very hard with her left hand while he was
on the floor. When the defendant saw Ms. Norris watching, she kicked the door of her apartment
closed. Ms. Norris was disturbed enough about this incident to call the apartment complex manager.
She did not, however, report this incident to the police until after Nicholas’ death.



                                                 -3-
                In response to the state’s proof, the defendant offered evidence minimizing her
culpability for Nicholas’ injuries and death.

                David Burchell testified that Nicholas was usually fussy in the mornings, and he was
crying on the morning of November 17 when Mr. Burchell went to the apartment about 9:30 to
retrieve his radio. He testified that when he returned to the apartment a second time later that
morning, Nicholas was limp, unresponsive, and breathing strangely; however, he did not have any
signs of injury, nor was the apartment in disarray. Mr. Burchell acknowledged that his wife had not
called 911 prior to his return to the apartment. He claimed that the defendant was a fantastic mother,
and he had no complaints about the way in which she cared for their children. He admitted,
however, that his wife had an anger problem, although he had never seen her manifest this on a child.
He also admitted that he was aware of an incident in which the defendant had patted Nicholas on his
diaper, and he had discussed this incident with Jonathan Cotton. He said that his wife had been
cooperative with the police investigation following Nicholas’ injuries.

                Lewis Toth testified as a character witness for the defendant. He claimed that she had
babysat for his grandchildren, and he was always very happy with her services. He would not have
a problem letting her babysit his grandchildren even following the incident with Nicholas.

                Doctor Jan Edward Leestma, an anatomic pathologist and neuropathologist, testified
as a defense expert. He contradicted the state’s witnesses who said that Nicholas’ injuries were not
consistent with a backwards fall from a standing position or from a high chair. Rather, Dr. Leestma
opined that either could result in serious injuries. He testified that medical literature contains reports
of similar incidents resulting in serious injuries, including one report of a child of similar age and
size to Nicholas dying as a result of a two and one-half foot fall. Doctor Leestma further opined that
an individual might suffer injuries yet exhibit no symptoms for an hour, two hours, or even a day.
Thus, he opined that it was “possible” that Nicholas had sustained a head injury prior to his arrival
at the defendant’s apartment on November 17. On cross-examination, Dr. Leestma admitted that he
had not talked with the victim’s treating physicians and that he had written professionally in 1985
that child abuse would be suspected in cases similar to the victim’s. He maintained that due to the
advance of medical science since 1985, he now believed it possible that the defendant’s injuries
resulted from accident.

               Finally, the defendant took the stand in her own defense. She said that Nicholas was
cranky and lethargic on the morning of November 17. She sat with him for a time, and when she
eventually got up, he fussed. She grabbed the sides of his head with her hands. She conceded that
she might have done this with too much force and caused a bruise on Nicholas’ head, but that she
had not meant to use that amount of force. She told Nicholas to stop crying, and he responded by
screaming. She became frustrated and told Nicholas to go to the corner. She realized she needed
to get away from him before she became too frustrated, so she walked into the kitchen. She was
walking back into the living room when she saw him stiffen up and throw himself backwards, hitting
his head on the floor. Nicholas stopped crying. He blinked as if he was dazed. She lifted him, and



                                                   -4-
he vomited on her shoulder. His breathing became difficult, and he went limp. She summoned her
husband, then 911, and then Jonathan Cotton.

               The defendant testified that she was confused during questioning by Detective Carter,
and when she told him that she felt responsible, she meant that she felt responsible for Nicholas
because he was in her care, not because she had injured him. She claimed to have had no intent to
hurt Nicholas. She also claimed that she had been babysitting children since she was thirteen years
old and had never previously been accused of any inappropriate behavior toward her charges, nor
had other children been injured while in her care.

               The defendant testified that she did not know why some of the medical personnel
obtained a history of Nicholas having falling from a high chair, as she did not own one.

                With respect to the October incident about which Catherine Norris had testified, the
defendant explained that her two children and Nicholas had gone outside and headed toward the
street after her older child was able to open the apartment door. After the defendant returned the
three children to her apartment, she spanked them. She spanked Nicholas with her hand on his
diaper. She claimed that she reported the incident and spanking to Jonathan Cotton, and the Cottons
chose to continue placing Nicholas in her care.

                On this proof, the jury found the defendant guilty of aggravated child abuse and
criminally negligent homicide. At a later date, the trial court imposed a one-year, Range I sentence
for criminally negligent homicide and a 22-year sentence as a Violent Offender for aggravated child
abuse. The court ordered that the sentences be served concurrently.

               Following an unsuccessful motion for new trial, the defendant filed this appeal. She
claims that the trial court failed to discharge its function as thirteenth juror given the evidence
presented, that the court erred in admitting Catherine Norris’s testimony, and that the court
improperly limited the testimony of Dr. Leestma.

                                                   I

                 First, we consider the defendant’s claim that the trial court did not discharge its duty
as thirteenth juror because had it done so, it would not have accepted the verdict. Given the manner
in which the defendant has presented the issue, we view our duty of appellate review as being two-
fold. We will first determine whether the trial court discharged its function as thirteenth juror. If
it did, we will then consider whether the evidence sufficiently supports the verdict.

                Rule 33(f) of the Rules of Criminal Procedure imposes a mandatory duty on the trial
judge to serve as the thirteenth juror in every criminal case. State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995). Under the Rule, the judge is empowered to grant a new trial if he disagrees with the
jury about the weight of the evidence. Tenn. R. Crim. P. 33(f). "Rule 33(f) does not require the trial
judge to make an explicit statement on the record. Instead, when the trial judge simply overrules a


                                                  -5-
motion for new trial, an appellate court may presume that the trial judge has served as the thirteenth
juror and approved the jury's verdict." Carter, 896 S.W.2d at 122. Only if the record contains
statements by the trial judge indicating disagreement with the jury's verdict or evidencing the trial
judge's refusal to act as the thirteenth juror may an appellate court reverse the trial court's judgment.
Id. Otherwise, appellate review is limited to sufficiency of the evidence pursuant to Rule 13(e) of
the Rules of Appellate Procedure. State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App.
1993). If the reviewing court finds that the trial judge has failed to fulfill his or her role as thirteenth
juror, the reviewing court must grant a new trial. State v. Moats, 906 S.W.2d 431 (Tenn. 1995).

               In the present case, the court explicitly stated its satisfaction with the verdict on the
record. The trial judge said, “I’m satisfied with the verdict in this matter . . . .” Nothing could be
plainer. The court discharged its duty as thirteenth juror, just as it was required to do.

               Having determined that the court properly exercised its duty as thirteenth juror, we
move on to the second component of the defendant’s issue, which pertains to the sufficiency of the
convicting evidence. When an accused challenges the sufficiency of the evidence, an appellate
court's standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of
guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000).

                 A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before an accused
may be convicted of a criminal offense based upon circumstantial evidence, the facts and the
circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save
the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 225 Tenn. 478,
482, 470 S.W.2d 610, 612 (1971). “A web of guilt must be woven around the defendant from which
he cannot escape and from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 470 S.W.2d at 613.

                 In determining the sufficiency of the evidence, this court should not reweigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must
afford the State of Tennessee 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.
Cabbage, 571 S.W.2d at 835.


                                                    -6-
                The defendant in this case was convicted of aggravated child abuse and criminally
negligent homicide. A person commits aggravated child abuse who “knowingly, other than by
accidental means, treats a child . . . in such a manner as to inflict injury . . . so as to adversely affect
the child’s health and welfare” and “[t]he act of abuse or neglect results in serious bodily injury to
the child.” Tenn. Code Ann. §§ 39-13-401 (Supp. 2001) (child abuse and neglect); 39-13-402(a)(1)
(Supp. 2001) (aggravated child abuse and neglect). This crime is a Class A felony if the child is no
more than six years old. Id. § 39-13-402(b).

                In the light most favorable to the state, the trial evidence demonstrated that the
defendant became frustrated with the victim and handled him roughly. She was the only adult with
the victim at the time. Multiple physicians opined that the victim’s injuries could not have occurred
as the defendant described. Shortly after the incident, the defendant admitted that she had an anger
problem. Circumstantially, the proof points unerringly to the defendant as the individual who non-
accidentally injured the victim.

                The defendant was also convicted of criminally negligent homicide, defined as
“[c]riminally negligent conduct which results in death.” Tenn. Code Ann. § 39-13-212(a) (1997).
Circumstantially, the evidence in the light most favorable to the state demonstrates that the defendant
acted with a mens rea of at least criminal negligence when she injured the victim, and those injuries
ultimately led to his death. Thus, the evidence is sufficient to sustain the homicide conviction, as
well.

                In her brief, the defendant expresses concern that the jury was uncertain of the
evidence, claiming that if the jury found her guilty of aggravated child abuse, a companion finding
of felony murder necessarily would follow. However, this court is untroubled by the apparent
inconsistency in the verdicts given the sufficiency of the evidence on both counts. See, e.g., Wiggins
v. State, 498 S.W.2d 92 (Tenn. 1973); State v. Hayes, 7 S.W.3d 52, 57 (Tenn. Crim. App. 1999).
Indeed, the defendant was the beneficiary of the jury’s finding of guilt of the lesser offense of
criminally negligent homicide, as opposed to the greater offense of felony murder, given that the
evidence supported a finding of either.

                                                    II

               We next consider the defendant’s argument that the lower court erroneously admitted
the testimony of Catherine Norris that she witnessed the defendant repeatedly strike the victim one
month prior to the event on trial. When the state proffered this evidence, its premise for admission
was that the event about which Ms. Norris would testify demonstrated the defendant’s intent and
absence of accident regarding the incident on trial. The defense objected, arguing that the evidence
was more prejudicial than probative because a single, isolated incident a month prior to the incident




                                                    -7-
on trial failed to demonstrate a pattern of abuse or neglect, and at that point in the trial,1 there had
been no defense theory advanced that the incident was the result of mistake or accident. Following
a jury-out hearing, the court allowed admission of the evidence, finding that its probative value on
the issues of intent, absence of mistake, opportunity, or common scheme or plan outweighed the
evidence’s prejudicial effect. The court relied upon Tennessee Rule of Evidence 404(b) as the basis
for admission.

                 As a general proposition, evidence of a defendant's prior crimes, wrongs or acts is not
admissible as character evidence of the defendant to prove that she committed the crime in question.
Tenn. R. Evid. 404. The rationale underlying the general rule is that admission of such evidence
carries with it the inherent risk of the jury convicting the defendant of a crime based upon her bad
character or propensity to commit a crime, rather than the conviction resting upon the strength of the
evidence. State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the
defendant's prior bad acts are similar to the crime for which the defendant is on trial. Id.; see also
State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996). Nevertheless, evidence of a defendant's prior
crimes, wrongs or acts may be admissible where it is probative of material issues other than conduct
conforming with a character trait. Tenn. R. Evid. 404(b).

                In Tennessee, evidence of a criminal defendant's character may become admissible
when it logically tends to prove material issues which have been divided into three categories: (1)
the use of "motive and common scheme or plan" to establish identity, (2) to establish the defendant's
intent in committing the offense on trial, and (3) to "rebut a claim of mistake or accident if asserted
as a defense." McCary, 922 S.W.2d at 514. In order for such evidence to be admitted, the rule
specifies three prerequisites:

        (1) The court upon request must hold a hearing outside the jury's presence;

        (2) The court must determine that a material issue exists other than conduct
        conforming with a character trait and must upon request state on the record the
        material issue, the ruling, and the reasons for admitting the evidence; and,

        (3) The court must exclude the evidence if its probative value is outweighed by the
        danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by clear and
convincing evidence that the defendant committed the other act. Tenn. R. Evid. 404, Advisory
Comm'n Comment; State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton, 694
S.W.2d 299, 303 (Tenn. 1985).




        1
          The evidence was offered during the state’s case-in-chief. Prior to Ms. Norris’ testimony, the state had
introduced into evid ence the defendant’s pretria l statement, in which she had ma de the claim o f accident.

                                                       -8-
                 On appellate review of a trial court's decision to admit or exclude evidence, an
appellate court may disturb the lower court's ruling only if there has been an abuse of discretion.
DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). Where
the trial court has been called to pass upon the admissibility of evidence of other crimes, wrongs or
acts under Rule 404(b), its determination is entitled to deference when, as in the case at bar, it has
substantially complied with the procedural requisites of Rule 404(b). See DuBose, 953 S.W.2d at
652.

                The defendant claimed in a pretrial statement to Detective Carter first that the victim
injured himself. She admitted later in the same statement that she had been rough with victim and
forced him to sit down, but she maintained that she had no intent to injure him. She steadfastly
maintained that she did not willfully strike the victim with great force, although she inadvertently
might have used more force than she should have. The code proscribes as child abuse knowingly
treating a child “other than by accidental means,” in a manner that results in serious bodily injury
to the victim. Tenn. Code Ann. §§ 39-15-401 (Supp. 2001); 39-15- 402 (Supp. 2001) (emphasis
added).

                In child abuse and child abuse homicide cases, Tennessee appellate courts have
applied principles of Evidence Rule 404(b) to approve the use of evidence of the defendant’s prior
abuse of the victim. See, e.g., DuBose, 953 S.W.2d at 654 (evidence that the defendant had
previously injured the victim’s hand and head “was relevant to two closely related material issues:
intent and absence of accident”); State v. Evangeline Combs, No. E2000-0281-CCA-R3-CD, slip op.
at 53 (Tenn. Crim. App., Knoxville, Sept. 25, 2002) (despite the defendants making no claim of
accident in injuring child victim, evidence was admissible to show that the defendants injured the
victim “knowingly, which clearly infers non-accidental conduct,” as a means of proving the offense
of aggravated child abuse”) (emphasis in original); State v Lacy, 983 S.W.2d 686, 693 (Tenn. Crim.
App. 1997) (“[A]s in DuBose, the evidence [of the defendant’s prior assaults against the victim] was
relevant to the [material] issues of intent and absence of accident.”).

                We believe, however, that these cases are factually distinguishable from the present
case; in the child abuse cases we have reviewed, the use of evidence that the defendant abused the
child before he or she committed the assault under review was accompanied by contextual facts.
These facts helped to guide an inquiry into the defendant’s intent or lack of accident or mistake in
the case on trial. For instance, in DuBose, the trial court admitted evidence that, at different times
prior to the day of the fatal assault upon the sixteenth-month-old victim, the defendant, who was the
live-in boyfriend of the victim’s mother, had injured the victim’s hand and his head, the latter
resulting in “the development of scar tissue between the scalp and the skull,” and that the defendant
was hostile toward the victim because he reminded the defendant of the victim’s father, whom the
defendant disliked. DuBose, 953 S.W.2d at 651. In light of the relationship of the defendant to the
victim and to his mother and that the prior assaults resulted in injuries to the victim, proof of the
“injuries was highly probative of both his intent to harm the child and also that the fatal injury was
not accidental.” Id. at 654.



                                                 -9-
               In Evangeline Combs, this court approved the state’s use of extensive “background”
evidence that included evidence of long-term abuse inflicted upon a then minor victim. The court
found that “evidence of the Defendants’ hostility and abusive behavior toward [the victim] is
relevant to demonstrate their intent to confine or imprison her [and their] guilty knowledge that their
actions caused serious bodily injury, and rebuts any notion that the systematic, long-term abuse of
the victim was an accident or mistake.” Evangeline Combs, slip op. at 53.

                 In Lacy, the evidence showed that the five-year-old victim bled to death as a result
of “multiple blows to the buttock area.” Lacy, 983 S.W.2d at 690. The trial court admitted evidence
that two years before the fatal injuries were administered, the defendant, who was the boyfriend of
the victim’s mother, had inflicted numerous injuries upon the victim, including “bruising to his right
temple, right eyelid, and right ear lobe . . . [and b]ruises on his abdomen and on his left elbow[, b]urn
marks . . . on [the victim’s] left buttock and lower left leg[,] blistering burn marks on his shoulder,
right buttock, and right heel.” Id. at 689. The medical expert who described these injuries opined
that they were “consistent with a pattern of physical abuse.” Id. at 693 (emphasis added).

                 We are struck by salient distinctions between these cases and the present case. In the
present case, the state offered, without contextual information, evidence of a solitary incident that
occurred a month before the victim received his fatal injuries. This proof showed that the defendant
hit the victim with her hand, but there was no proof that the incident resulted in injuries to the victim
or that the striking resembled the later fatal assault. Although Ms. Norris described the blows as
repeated and forceful and testified that she was angered enough to discuss the event with her husband
and to call the apartment manager, she did not per se articulate the striking as brutal or excessive.
The state illustrated no other instances of the defendant striking the victim, and no pattern of such
conduct was implicated. Moreover, the defendant had no familial or other close relationship with
the victim from which emanated chronic hostility toward the victim.

                Under the circumstances, we hold that the isolated incident narrated by Ms. Norris
should not have been admitted; it was not relevant to establish that the defendant acted knowingly
when she fatally injured the victim or to rebut the defendant’s claim of accidental injury. We believe
that the findings of the Dubose, Lacy, and Evangeline Combs courts are buttressed by the presence
of multiple assaults or an abusive pattern that resulted in visible injuries or scars, belying a claim that
a later injury was the result of accident by showing a history of ill will toward the victim. We doubt
that an out-of-context, isolated incident fails to illustrate much of anything except that the defendant
is the kind of person who bears ill will toward small children – in other words, that she had the
propensity to injure the victim and cause his death.

                Courts should be wary of Rule 404(b) evidence that is offered for other purposes than
propensity but which, in reality, involves no other logical progression between the prior bad act and
the crime under review and merely masks propensity as the connection between the two. See State
v. Leslie Brian Willis, No. 01C01-9802-CC-00068, slip op. at 11 (Tenn. Crim. App., Nashville, July
15, 1999) (finding no cause-and-effect relationship between a prior rape against a different victim
and the felony murder by rape on trial, “only the extrapolation that, if the defendant intended rape


                                                   -10-
of a female in 1985, he must be the sort of person who intended to rape [the victim in the current
case]”, perm. app. denied (Tenn. 2000). If the conclusion is connected to the premise only by the
vehicle of propensity, Rule 404(b) is generally breached. “Propensity evidence by any other name
is still propensity evidence, and evidence that is propensity evidence only is inadmissible.” Leslie
Brian Willis, slip op. at 11. Thus, the trial court erred in allowing Ms. Norris’ testimony.

                Now, we must determine whether the error requires reversal of the defendant’s
convictions. See Tenn. R. Crim. P. 52(a) (precluding reversal on appeal unless the error
“affirmatively appear[s] to have affected the result of the trial on the merits”); Tenn. R. App. P. 36(b)
(precluding reversal on appeal unless, “considering the whole record, error involving a substantial
right more probably than not affected the judgment or would result in prejudice to the judicial
process”). We observe that the state presented a strong case, which included the defendant’s pretrial
statement wherein she made inculpatory admissions. The state’s medical evidence was influential,
as contrasted with the defendant’s medical proof, which appears to have been substantially
impeached. Despite the considerable weight of the state’s case, the jury acquitted the defendant of
felony murder predicated upon child abuse and of lesser-included offenses -- convicting her of the
least culpable lesser-included homicide offense of criminally negligent homicide, an offense that is
essentially bottomed on accident as a theory of homicide. Even though the jury convicted the
defendant of the aggravated child abuse charge, we are strongly influenced by its verdict on the
homicide charge that it was not unduly or unfairly affected by Ms. Norris’ testimony. Accordingly,
we conclude that the error was harmless.

                For these reasons, we decline to find reversible error in the admission of Ms. Norris’s
testimony.

                                                  III

               Finally, the defendant claims that the trial court erred in ruling that Dr. Leestma, the
defense expert, could not testify to his opinion regarding the cause of the victim’s death. Under
Tennessee law, expert testimony may be admitted if it will “substantially assist the trier of fact to
understand the evidence or to determine a fact in issue.” Tenn. R. Evid. 702. An expert witness is
one who is qualified “by knowledge, skill, experience, training or education.” Id. Admission of
expert testimony is a matter within the discretion of the trial court, and that discretion will not be
disturbed on appeal unless it has been abused. Coe v. State, 17 S.W.3d 193, 226-27 (Tenn. 2000);
State v. Begley, 956 S.W.2d 471, 475 (Tenn. 1997).

                In this case, however, we are unable to review the lower court’s exercise of discretion
in excluding Dr. Leestma’s testimony. The record before us contains no defense proffer of what Dr.
Leestma’s testimony would have been with respect to the matters about which he was not allowed
to testify. As our supreme court has observed,

        In order for an appellate court to review a record of excluded evidence, it is
        fundamental that such evidence be placed in the record in some manner. When it is


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       a document or exhibit, this is done simply by having the exhibit marked for
       identification only and not otherwise introduced. When, however, it consists of oral
       testimony, it is essential that a proper offer of proof be made in order that the
       appellate court can determine whether or not exclusion was reversible.

State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986) (emphasis added). We hold that the defendant
waived appellate review of this issue by failing to preserve Dr. Leestma’s proposed opinion
testimony on the record.

                We note additionally that the record contains no indication that the defense contested
the medical examiner’s testimony regarding the cause of death, that being multiple blunt force
injuries to the head. Rather, the true issue in this case focused on the mechanism by which the
victim received those injuries. Thus, in the absence of an offer of proof of Dr. Leestma’s proposed
testimony, we are at a loss to conjecture how his testimony might have changed the course of the
trial.

               Finding no harmful error, we affirm.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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