        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 6, 2012

                 STATE OF TENNESSEE v. RASHII BRISBON

                 Appeal from the Circuit Court for Rutherford County
                    No. F-65077     Don R. Ash, Presiding Judge


                No. M2012-00671-CCA-R3-CD - Filed March 13, 2013


The defendant, Rashii Brisbon, was charged with aggravated child abuse and first degree
(felony) murder after the death of a toddler in his care. A jury convicted him of aggravated
child abuse, a Class A felony, but was unable to reach a verdict on the felony murder charge.
The trial court sentenced the defendant to serve twenty years in prison. The defendant
appeals, asserting that the State did not present evidence sufficient to support the verdict,
particularly the mens rea element, and that the trial court relied on inapplicable enhancement
factors during sentencing. After a thorough review of the record, we affirm the judgments
of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and A LAN E. G LENN, JJ., joined.

Dicken E. Kidwell and John Taylor, Murfreesboro, Tennessee, for the appellant, Rashii
Brisbon.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
William Whitesell, District Attorney General; and Laural Hemenway, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                         OPINION
                            I. Factual and Procedural History

        Kymari Clark, the sixteen-month-old victim, had been left in the care of the defendant,
who was his step-grandfather. After the victim became unresponsive and the defendant
called 911 to report that the victim had possibly been choking, medical personnel determined
that he had a large area of blood on his brain as a result of blunt force trauma associated with
acceleration-deceleration. The State’s expert witnesses testified that the baby had suffered
non-accidental trauma, possibly shaking, at the hands of someone with the strength and
coordination of an adult, and that his injuries included retinal hemorrhages, swelling of the
brain, and bruising on his neck. The defendant’s expert witness, whose conclusions were
refuted by all other medical witnesses, testified that the victim had suffered from a condition
called tuberous sclerosis which caused him to have seizures and that any blunt force trauma
was the result of convulsions associated with the seizures. The victim died after two days
in the hospital, when it was determined he had suffered brain death.

       At trial, the State presented the testimony of Erin Fisher, a dispatcher with the
Rutherford County EMS, regarding the defendant’s call to 911. Ms. Fisher testified that at
approximately 3:09 p.m., the defendant’s call was transferred to her. The defendant’s
recorded call was played for the jury.

        During the call, the defendant told Ms. Fisher that the victim was unresponsive and
gasping for breath. He stated that the victim had been sitting in the chair and choking or
coughing. He said that the victim had just finished eating and then stated that the victim had
not been choking but just coughing. He told Ms. Fisher that the victim was breathing and
would look at him. He stated that the victim was eighteen months old. Ms. Fisher instructed
the defendant several times to hold the victim upright and not to jostle the victim. He denied
that the victim could have choked because he said he had been chewing the victim’s food for
him. When asked again if the victim would acknowledge him, the defendant stated he was
“going in and out.”

       Ms. Fisher testified that at the end of the call, first responders with the Murfreesboro
fire department arrived on the scene. Ms. Fisher testified that nothing the caller told her
would indicate a seizure, that she commonly took calls reporting children having seizures,
and that “[t]his call to me seemed like an airway problem,” based on the caller “stating that
the child was coughing, choking.” Ms. Fisher instructed the defendant to hold the child
upright and not to jostle him, which was the instruction she was trained to give in cases
where a child is having difficulty breathing. She did not give instructions to treat a seizure.
She testified that the victim was later transferred to the pediatric department at Vanderbilt
Hospital at some point prior to 7:00 p.m.



                                              -2-
        Grady Bilbrey, a firefighter paramedic with the Murfreesboro Fire Department,
responded to the defendant’s 911 call and arrived with three other firefighters prior to the
ambulance. He found the victim lying on a couch, and the defendant told him “that the child
had choked possibly on a piece of bread.” Mr. Bilbrey testified that the child was breathing
and that he had a heartbeat which was slightly more rapid than normal. The victim was
unresponsive and did not respond much to painful stimuli. Mr. Bilbrey testified that he did
not see anything obstructing the victim’s airway and that the victim was breathing, but that
the respiratory rate was slower than normal and that he could hear abnormal sounds with the
victim’s breathing that might indicate fluid or mucus in the lungs. He could not see far down
into the victim’s throat. Mr. Bilbrey used a bag valve mask to supply the victim oxygen, but
did not perform CPR or push on his chest because the victim’s heartbeat was adequate. EMS
arrived approximately three minutes after the firefighters. Mr. Bilbrey did a quick scan of
the victim’s whole body and noticed no other injury on the victim. He saw no indication of
a seizure. The defendant did not indicate that he had removed anything from the victim’s
throat, and Mr. Bilbrey saw no food or vomit. The victim was not being held upright when
first responders arrived. The defendant was the only adult in the home. Mr. Bilbrey
continued to give the victim oxygen during the ambulance ride but did not remember if the
defendant rode in the ambulance.

        The defense introduced a photograph of the mask portion of a bag valve mask being
held onto a patient’s head, and Mr. Bilbrey testified that the bag valve mask he used had a
soft, flexible seal that had to be held onto the victim’s face. On re-direct examination, Mr.
Bilbrey testified that his fingers were along the victim’s jawline and not in the soft tissue of
the neck. Mr. Bilbrey testified that he secured the mask with his left hand on the left side of
the victim’s face. He stated that he did not recall touching the victim on his neck and that
he would have checked the pulse in his arm and not his neck. Mr. Bilbrey’s report reiterated
that the victim was unresponsive with no obvious injury and that the victim’s grandfather had
stated the victim was eating bread and began to choke.

        Over the defendant’s objection, the trial court allowed the State’s next witness, Bradly
Strohlar, a pediatrician at Vanderbilt Hospital, to give an opinion regarding the cause of the
victim’s death. Dr. Strohlar testified that another doctor had admitted the victim overnight,
and that Dr. Strohlar took over his care in the morning. Dr. Strohlar testified the victim was
on a ventilator because his breathing was “agonal,” which Dr. Strohlar described as an
irregular, gasping breathing which indicates severe brain injury and which would not support
life. When Dr. Strohlar first examined the victim, his pupils responded to light “a little bit,”
he exhibited agonal breathing, and he stiffened to pain. Within twenty-four hours, however,
the victim did not respond at all. A CT scan revealed a subdural hemorrhage on the right side
of his brain. The victim also had bruises under his chin. Dr. Strohlar testified that “he was
having assistance through his airway throughout his presentation so it’s unclear how those

                                              -3-
bruises appeared.” The victim also had retinal hemorrhages. The pressure inside the
victim’s head quickly rose to “catastrophic” levels which Dr. Strohlar stated could not be
survived.

        Dr. Strohlar opined that the combination of injuries very likely reflected an injury at
the hands of somebody with the strength and coordination of an adult, and that the victim
died of abusive head trauma or blunt force trauma. He testified that the distance between the
bones in the victim’s neck was abnormally wide, and that, together with the victim’s other
injuries, this suggested a violent shaking as the source of trauma. He further testified that
a violent move could cause a tear in the veins in a young child’s brain and cause a subdural
hemorrhage. He testified that a short seizure would typically cause no brain damage, and that
an extended seizure could cause swelling in the brain, but could not cause retinal or subdural
hemorrhage. He testified that he had never seen a child with seizures have injuries similar
to the victim’s, but commonly saw similar injuries from accident or shaking.

        Dr. Strohlar stated that the victim’s injuries typically indicated abusive head trauma,
and that there was no other disease he was aware of that would cause those symptoms. He
further testified that tuberous sclerosis would not cause a subdural hematoma, that he had no
reason to suspect that the victim had tuberous sclerosis, and that he had never seen a child
with tuberous sclerosis die of a seizure. The victim’s retinal injuries were so severe that he
would have had to have surgery to be able to see, had he survived. Dr. Strohlar determined
the victim’s time of death from the time the victim met the federal and state criteria for brain
death. Dr. Strohlar reiterated that the cause of the victim’s injuries was a violent assault
performed by someone with the strength and coordination of an adult. He stated that the
force would be more than routine treatment or even aggressive treatment in efforts to
resuscitate a child, and that an onlooker’s impulse would be to rescue the child from what
was happening. When asked if the person applying the force would know he or she was
doing it, Dr. Strohlar stated, “I don’t know what would go on inside the mind of somebody
in that circumstance,” but reiterated that an onlooker would feel the impulse to rescue the
child.

        On cross-examination, Dr. Strohlar testified that it was possible the victim also had
seizures, but that seizure would not cause the injuries he sustained. He stated that while the
distance between the bones in the neck could indicate injury, he might change his opinion
regarding neck injury if the medical examiner found no trauma to the spine. He testified that
he would defer to a forensic pathologist as to the cause of death. Dr. Strohlar acknowledged
that the doctor who admitted the victim described his condition as fair, but stated that the
child was also described as comatose and received critical care upon being admitted,
indicating that he was critically ill, and stated that this discrepancy in the chart “annoyed”
him. He testified that a clenched jaw might be present if the victim was having seizures.

                                              -4-
        On redirect examination, Dr. Strohlar reiterated that a seizure could not have caused
his brain hemorrhage but the brain hemorrhage, swelling, or other trauma would have caused
any seizures.

       The victim’s mother, Vanessa Clark, testified that at the time of the victim’s death,
she was in cosmetology school and her mother – Ruby Hall-Brisbon, who was the victim’s
grandmother and the defendant’s wife – offered to assist with the care of the victim. Ms.
Hall-Brisbon, the defendant, and their children, a son who was a few weeks older than the
victim and a daughter who was two or three, drove to Indiana, where the victim lived with
his mother, to pick up the victim and care for him over the summer. The victim lived with
the defendant for six weeks before his death, and he was healthy at the time he left his
mother’s care. The victim’s mother testified he had never had seizures or other health issues
and he was sixteen months old at the time of his death. While the victim’s mother knew that
the defendant would be living with her son and providing occasional care, Ms. Hall-Brisbon
had sent the victim’s mother a picture of a babysitter, and she did not know that the
defendant would be the primary caretaker or that he would be providing care for all three
children by himself. On cross-examination, the victim’s mother testified she had once taken
the victim to an emergency room in Indiana, where it was determined he had a fever from
teething.

       Stephanie Clark, the victim’s step-grandmother, had provided care for him prior to his
move to Tennessee. She testified that the victim and his mother moved into her household
when the victim was three months old and that they lived with her for approximately one
year. The victim’s step-grandmother, a licensed practical nurse, testified that she
accompanied the victim and his mother to doctor’s appointments and that he had no health
problems. She testified that she specialized in pediatrics for a number of years and was
familiar with seizures and that the victim never had seizures. On cross-examination, she
acknowledged that the victim had been taken to the emergency room once, but testified that
the problem resolved immediately with minor medication.

        The State next presented the testimony of David Norton, a police officer with the city
of Murfreesboro. Officer Norton was informed of a case of possible child abuse at 4:30 p.m.
on June 16, 2010. Officer Norton arrived at the hospital and observed bruising on the right
side of the victim’s neck. He questioned the defendant about the bruise, and the defendant
stated that the victim had climbed on the toilet, slipped, and hit his neck on the bowl. Officer
Norton questioned the EMS responders and found inconsistencies between their statements
and the defendant’s. The investigation was continued by a detective. On cross-examination,
Officer Norton affirmed that under Tennessee law, the failure to report suspected child abuse
is a misdemeanor.



                                              -5-
        Detective Tommy Roberts testified that he investigated the case after Officer Norton
contacted him regarding suspected child abuse. He observed red marks on the victim’s neck.
When Detective Roberts initially spoke with the defendant, the defendant stated that the
victim had choked on bread. Detective Roberts left the room to take pictures, and when he
next asked the defendant what happened, the defendant told Detective Roberts that the victim
choked on chicken. Detective Roberts left to speak with the paramedics and with Officer
Norton. When he returned the defendant stated that he had forgotten to mention the victim
rolled off of a couch. The defendant acknowledged that he had been the only adult in the
house. He told Detective Roberts that it had been a normal day, and the victim seemed fine
up until he had to be taken to the hospital. Detective Roberts then went to the defendant’s
residence, where the victim had become unresponsive. He identified pictures of the couches
in a carpeted area of the residence and stated he did not see any food in the area while he was
there.

        Detective Roberts introduced the defendant’s telephone records. The records indicate
that the defendant made a call to Ms. Hall-Brisbon, the defendant’s wife and the victim’s
grandmother, at 3:05 p.m. The call took thirty-six seconds to connect and lasted one second.
At 3:08 p.m., the defendant called Charles Treece. The call connected after twenty-four
seconds and lasted three seconds. Also at 3:08 p.m., the defendant received a call from Mr.
Treece, and was on the phone with him for fifteen seconds. At 3:09 p.m., he called 911.
Detective Roberts interviewed Mr. and Mrs. Treece and the victim’s grandmother. The
victim died on June 18, 2010, and the victim’s autopsy determined the manner of death to be
homicide.

        Marshall Jones of the Rutherford County EMS testified that he and his partner Jeremy
Holmes responded to a call regarding a pediatric patient choking at around 3:10 p.m. on June
16, 2010. He testified that the child was lying on a couch or chair and that emergency
responders for the fire department were assisting the child’s breathing. Mr. Jones checked
the victim’s airway and did not see any obstruction, and did not hear any sounds from the
victim’s lungs to indicate obstruction. Mr. Jones testified that the victim was not having a
seizure and was unresponsive. He testified that after a seizure, a patient might be in an
unresponsive state but would be able to respond after five or ten minutes, and that the victim
never responded and “[i]t was a decreasing situation the entire time we had him.” He
testified that after a seizure, the patient’s heart rate would usually be faster than normal, but
the victim’s heart rate was significantly slower than normal. Mr. Jones transported the victim
to Middle Tennessee Medical Center and later to Vanderbilt Hospital. Mr. Jones noticed
bruising and abrasions to the right side of the victim’s neck prior to transporting him to
Vanderbilt. The bruises were “[n]ot even close” to where firefighters were holding the
breathing mask onto the child’s face.



                                               -6-
        On cross-examination, Mr. Jones testified that he did not notice trauma during his
rapid trauma assessment at the residence, which he described as checking to see if the
patient’s limbs were attached or if he was bleeding. He testified that he did not disagree with
the initial assessment of the other paramedic that the victim’s head, neck, chest, pelvis, and
extremities were atraumatic.

       On redirect examination, he testified that the victim’s jaw was not clenched initially,
but that when they tried to insert a small tube to keep the airway unobstructed in the
ambulance, the victim’s jaw was clenched and they could not safely open his mouth. The
victim did not have any seizures between the time the paramedics arrived and when they got
him to the truck. Mr. Jones clarified that “atraumatic” indicated simply that he did not note
an injury which required immediate attention. He testified that he does not treat internal head
injuries and that he probably would not have been able to see injuries inside the victim’s
head. Mr. Jones testified that the bruises to the victim’s neck were not in the same location
paramedics would have used to lift his chin to open the airway.

        Jeremy Holmes, the other paramedic who responded to the 911 call, testified that he
checked the victim for choking and found no particles of food in the child’s mouth or airway.
He testified that the defendant told him the victim had no allergies or past medical history
and was taking no medications. The defendant told Mr. Holmes that the victim was eating
bread and “choked and slumped over.” The defendant mentioned nothing about a possible
seizure, and Mr. Holmes noted no evidence of a seizure. Mr. Holmes testified that the victim
was not completely unresponsive because he would respond to taps on the foot by moaning,
but he had a decreased level of consciousness. Mr. Holmes testified that he noticed a bruise
about three quarters of an inch in diameter on the right side of the victim’s neck. The bruise
was not where the mask was being held to the victim’s face. The victim did not have any
seizures, and the victim’s vital signs improved somewhat during the ride to the hospital. Mr.
Holmes testified that his assessment of the victim’s head as atraumatic was limited to what
he could see externally, and that he would not have been able to identify internal bleeding.
Mr. Holmes testified that his report indicated the victim’s jaw was clenched, which might
indicate some internal injury to the head. When Mr. Holmes first assessed the victim, his jaw
was clenched but he was able to see inside the victim’s mouth, which was not completely
shut, through a gap in the teeth. He found no evidence of choking or seizures. Mr. Holmes
transported the victim, who had been put on a spine board, to Vanderbilt. No traumatic
events occurred during transportation, and the victim never regained consciousness. No
other adults were in the apartment with the victim. Mr. Holmes did not see any firemen or
EMS workers do anything that might have caused the bruise to the victim’s neck. On
cross-examination, Mr. Holmes stated it was not possible that the bruise came from
somebody administering treatment. He explained that the victim’s vital signs improved in
the ambulance because his low blood oxygen and slow heart rate were increased by the

                                              -7-
assistance he was receiving with respiration.

       Detective Paul Mongold of the Murfreesboro Police Department assisted Detective
Roberts with investigating the case. Detective Mongold overheard the defendant say that the
victim had fallen off the couch and he had helped the victim back onto the couch to go to
sleep. He also overheard the defendant attribute the injuries on the victim’s neck to the
victim falling near or around a walker, and the defendant stated that the victim’s uncle, who
was the same age as the victim, had grabbed him.

       Dr. David Whetstone testified he was working in the emergency room at Middle
Tennessee Medical Center and that EMS notified him that they were bringing the victim.
EMS was concerned that the victim might be seizing and that he was not responding to
stimulation. He testified that initially, the defendant was not present. The victim was
“moaning” and “posturing” and had “tonic clonic” activity in a manner typical of patients
having seizures. When Dr. Whetstone inserted a tube into the victim’s trachea to help him
breathe, he used a lighted tool and found a mild amount of blood around his airway in his
neck but no food or foreign body. Dr. Whetstone testified that there was no obvious source
for the blood because, while a seizure might cause a patient to bite his or her mouth or
tongue, he did not see any bites during the victim’s physical examination.

       Dr. Whetstone testified that the victim had bruising and abrasions to his neck, and he
asked the defendant where they had come from. The defendant told Dr. Whetstone that the
victim had hit his head on the table a week earlier. Dr. Whetstone testified that the injuries
were not consistent with a bruise that was a week old. The victim did not wake up as would
be typical of a seizure patient, but continued to be unresponsive.

       Dr. Whetstone testified that after the initial assessment, he was concerned that the
victim had suffered trauma and had a CT scan taken. The CT scan revealed a subdural
hemorrhage. Dr. Whetstone testified that the brain hemorrhage could have caused the
seizures. He arranged to have the victim transferred to Vanderbilt Hospital and notified
Child Protective Services. He testified that a patient could have a head injury without
external bleeding or broken bones.

        On cross-examination, Dr. Whetstone agreed that the victim might have swallowed
the food by the time Dr. Whetstone examined him, and that it was possible that lung
secretions revealing minute aspirated food could be found after the victim had died. On
re-direct examination, he testified that choking victims often improve markedly with the
removal of the obstruction. On re-cross-examination, he testified that a hospital record
stating the victim was alert with no acute distress would have been incorrect.



                                             -8-
       Janet Lowe, a registered nurse at the Middle Tennessee Medical Center emergency
room, rode in the ambulance with the victim to Vanderbilt Hospital. She testified that the
victim was never alert and that he did not have any seizures on the way.

       Dr. Paul Hain testified that he evaluated the victim as part of a “care team,” or group
of pediatricians who would respond to suspicions of child abuse, at Vanderbilt University
Hospital. He testified that there was massive bleeding in all three layers of the retina and in
multiple parts of the eye. If the victim had survived, he would have had major vision
impairment and possible blindness. He testified that the victim had subdural bleeding which
had gone between the hemispheres of the brain. The victim’s brain was swollen so that the
differentiation between white and gray matter was disappearing, neurons were dying, and the
brain was becoming too swollen to function. The victim’s circulation had collapsed, and he
was on adrenaline to keep his veins open and heart pumping. He testified that the victim’s
brain injury was catastrophic and the victim’s brain swelled until it was nonfunctional. The
victim died of brain death. Dr. Hain did not see the victim have a seizure.

        Dr. Hain testified that he documented in his consultation note that choking or a short
fall would not explain the child’s injuries and that the injuries resulted from non-accidental
trauma at the hands of somebody with the strength and coordination of an adult. The injuries
did not result from casual force, and a normal person observing the injuries being inflicted
would panic and try to stop the abuse. Dr. Hain testified that acceleration-deceleration
trauma caused the victim’s brain to come apart. Such an injury would not necessarily be
accompanied by a bruise. Dr. Hain testified that the symptoms would manifest “minutes to
moments,” and not more than an hour, after the injury. He confirmed that the brain injury
could cause seizures. Dr. Hain testified that the type of retinal hemorrhage the victim
suffered could only be caused by massive deceleration trauma, such as that inflicted by a high
speed automobile accident, a fall from a multiple storey building, or a shaking back and
forth. Dr. Hain denied that a seizure could cause the type of brain damage the victim had.
He testified seizures could not cause retinal bleeding, either. Dr. Hain rejected the idea that
the victim had tuberous sclerosis. He testified that the victim did not have tubers in his brain
and that even if there had been tubers, they would not have caused the injuries he sustained.

       On cross-examination, Dr. Hain testified that there was no bruising or deformity on
the outside of the victim’s skull. He testified that the victim had no fractures in his neck but
that such a fracture would not necessarily accompany shaking, because in children, the
ligaments would generally be injured prior to a fracture. When shown that the patient was
described as in “fair” condition on transfer, Dr. Hain testified that “one can use the word fair
to mean not dead” but that he “would describe this child as in critical condition bordering on
death.” He testified that the blood on the victim’s brain could not have been caused by
disease and that he had treated patients with tuberous sclerosis in the past.

                                              -9-
        Alisa Libonn testified that she was the social worker in the pediatric intensive care
unit at Vanderbilt Children’s Hospital and that she was a liaison between the medical team,
law enforcement, and the victim’s parents. She testified that the victim was very sick and
stayed very sick.

       Kevin Smith, a child protective services investigator with the Department of
Children’s Services, testified that he visited the victim and there was bruising on both sides
of the victim’s neck. Mr. Smith accompanied Detective Mongold to the defendant’s
residence and spoke with Ms. Hall-Brisbon, the grandmother.

        The State’s next witness was Charles Treece, whom the defendant called prior to
placing the 911 call regarding the victim. Mr. Treece is a stay-at-home father who met the
defendant “through an internet business” involving Dr. Tina Gresham. Mr. Treece testified
that on the day of the victim’s hospitalization he noticed he had missed a call from the
defendant, and he called the defendant back. The defendant told him that the victim had
fallen off the couch and was choking. Mr. Treece instructed the defendant to call 911 and
hung up the phone. He then took his children to the defendant’s home, where paramedics
and the police were already present. He testified that the defendant and three children, all
less than school-aged, were there. Mr. Treece arrived approximately fifteen minutes after
he spoke with the defendant. He testified that he had seen the victim before, and the victim
appeared healthy and that the other two children were not injured in any way.

        On cross-examination, Mr. Treece testified that the defendant sounded upset and
concerned when they spoke on the phone. He testified that he had seen the defendant care
for the children approximately six to eight times for approximately an hour each time over
the course of the three months prior to the victim’s injuries. Mr. Treece testified that he had
never seen the defendant get upset or show anger towards the children, and he took care of
the children in a loving, caring, and gentle way. He never observed injuries on any of the
children and never observed the defendant harm, physically discipline, or raise his voice at
the children. He never saw the defendant be angry or violent in front of the children, and
the children had normal interactions with the defendant.

         On re-direct examination, Mr. Treece testified he had only known the defendant for
three months. He testified that the victim was present during each of the six to eight times
he observed the defendant with the children over a three month period. However, he
deferred to the victim’s mother regarding the length of the victim’s stay in the defendant’s
home. He stated he did not recall the defendant being upset about an unrelated event on June
16th , and that he did not recall that the defendant was supposed to be in charge of a business
meeting.



                                             -10-
       Dr. John Davis, a forensic pathologist, performed the autopsy on the victim on June
19, 2010. He testified that the victim had multiple blunt force injuries around his chin and
on his neck. He had significant blood on his brain and swelling of the brain. He also had
blood around his optic nerve and had retinal hemorrhages. Dr. Davis testified that none of
these injuries, with the exception of bruises, would be found on a healthy child. The victim
had bruising on both sides of his jaw and on his neck. Dr. Davis said that the cause of death
was multiple blunt force injuries, and the death was a homicide. He testified the victim could
not have inflicted the injuries on himself.

        Dr. Davis testified that some small sections of a vascular membrane of the brain called
the leptomeninges were removed as part of the autopsy, and that these areas were not tubers.
He testified that a tuber would manifest as a disruption of the gray and white matter of the
brain, and that this disruption as not present. Dr. Davis found no evidence of choking. He
testified that the injury could not have been accidental because of the amount of blood on the
brain and the impact injury to the back of his head. He testified that neither a fall from a
couch, a fall against a toilet, a bump into a coffee table, tripping over a walker, nor seizures
could have caused the injuries. The injuries could not have been caused by another child but
would require the force of an adult. Dr. Davis saw no white hairs, a symptom of tuberous
sclerosis, on the child. He also did not find a shagreen patch, a major criterion of tuberous
sclerosis, which Dr. Davis described as a yellow-brown area of raised skin that could have
a leathery or rubbery feel. Dr. Davis testified that the only discoloration on the victim was
a Mongolian spot.

       On cross-examination, Dr. Davis testified that a seizure could not cause a subdural
hemorrhage. He did not test for metabolic disease or vitamin deficiency, and noticed no
congenital malformation. He testified that while there can be other causes of retinal
hemorrhage besides trauma, the “depth and degree” of the victim’s retinal hemorrhages made
it “much more likely” that they resulted from trauma. He testified he did x-rays of the victim
and found no food, and that consolidation in the lungs was due to pulmonary edema and
congestion as a result of the injuries to his brain. He testified on redirect that Dr. Shaker, the
defendant’s expert, had access to all his slides and pictures and had requested tissue samples
that were unstained.

       Dr. Davis explained that the victim also had a bruise of the tissue between the scalp
and the skull. He stated that a bruise alone would not explain the victim’s injuries, and that
it showed that something hit his head along with the other injuries he sustained while being
shaken.

        The defense called Dr. Adel Shaker, a medical examiner for the state of Mississippi,
to testify as an expert in forensic pathology. Dr. Shaker stated that because he was a medical

                                              -11-
examiner, he rarely testified for the defense. Dr. Shaker testified that the victim died of blunt
force trauma to the head as the result of uncontrollable seizures associated with tuberous
sclerosis. Dr. Shaker introduced photographs of the victim’s brain, on which he claimed to
identify white lesions known as tubers. He also identified a photograph of dark patches on
the victim’s lower back and bottom which he stated were shagreen1 patches, or “leathery skin
with some dimple like an orange peel” and which are associated with tuberous sclerosis. In
a photograph of the deceased victim’s face, Dr. Shaker pointed out what he identified as Ash
Leaf Spots, or areas of skin which contain less pigment and are associated with tuberous
sclerosis. He also identified what he claimed was a small patch of white hair, another
symptom of tuberous sclerosis. Dr. Shaker clarified that there were three levels of diagnosis
for tuberous sclerosis: definite, probable, and suspect. He stated the victim had probable
tuberous sclerosis.

        He stated that he agreed with Dr. Davis’s findings except for the conclusion regarding
the mechanism of the blunt force trauma. Dr. Shaker opined that a seizure associated with
tuberous sclerosis caused the victim to bang his head. Dr. Shaker testified that although at
first he was skeptical of the defendant’s story, he found minute food particles in the terminal
bronchials, which indicated that the victim was choking on food, which was suctioned out
by the emergency medical technician. He stated that the trauma could not have been due to
child abuse because there was no hemorrhage of the conjunctiva of the eye, no bruising to
the inner lips of the victim, and no fracture of any rib, no older injuries, and no fractures in
the hands or legs. He claimed that if the child had been abused, “there would be contusion
and bruises on the soft tissue of the neck” and that abuse “would result in at least one or two
rib fractures.”

        On cross-examination, Dr. Shaker denied that he had previously been in trouble for
falsifying autopsies in Africa and denied being accused of falsifying an autopsy report in
Mississippi. Dr. Shaker stated he was being paid $250 per hour by the defense. Dr. Shaker
acknowledged that he had recently testified in Georgia for another defendant but stated he
was not aware that he was scheduled to testify for the defense in another Georgia case. He
stated that perhaps his boss was “referring cases” to him, but acknowledged that his boss had
testified against him in Georgia.

       Dr. Shaker denied that the areas of light pigmentation he identified were due to a
camera flash; however, he stated that the area of lighter pigmentation would have been
present at birth and subsequently acknowledged that he could not see the patch in a picture
of the victim as an infant. He testified that he had previously diagnosed tuberous sclerosis
for the first time during an autopsy on two prior occasions. He acknowledged that the

       1
           Dr. Shaker incorrectly spelled this out as “schgreen” for the court reporter.

                                                     -12-
victim’s caretakers would have seen what he had identified as a patch of white hair on the
child. He testified that a machine called a striker was used to open the skull during autopsy
but denied that the striker would ever cut into the soft tissue of the brain. He denied that the
areas he had identified as tubers were in a straight line, and marked what he identified as
additional tubers on the photograph where he had originally marked three tubers. He also
testified that the areas he claimed were shagreen patches would feel rough and that the child
would have been born with them. He then claimed that the patches could pass unnoticed
“unless they reach a certain age or they are females.” Dr. Shaker testified that no genetic
tests were run for the presence of tuberous sclerosis due to limited resources.

       Dr. Shaker testified that a child whose fontanelle was not closed could accommodate
more bleeding in the brain, and he believed the injury could have taken place three days
before the victim became ill. He testified that choking on bread could have triggered a
seizure. He agreed that he was not an expert in tuberous sclerosis. Dr. Shaker further
claimed that the victim’s retinal and optic nerve hemorrhages were the result of increased
pressure in his brain and that the retinal hemorrhages were not the result of abuse because
there was no retinal detachment, holes or hemorrhage in the posterior chamber of the eye.
He agreed that the victim could not have sustained the injuries from falling against a toilet
or walker or falling from a couch. Dr. Shaker testified that if the victim had been shaken by
an adult, there would have been broken bones. However, he acknowledged that if an adult
shook the victim by holding his clothes, there would be no broken bones, only neck bruises.
He testified that the neck bruises on the victim were caused by a neck brace.

        Dr. Mark Levaughn, the chief medical examiner for the state of Mississippi and Dr.
Shaker’s supervisor, testified to rebut Dr. Shaker’s conclusions. He testified that the victim
died of blunt force injury to the head, and that he saw no evidence of tuberous sclerosis. He
testified that the white spot in the victim’s hair was debris, that there was no ash leaf spot on
his face, and that the victim had Mongolian spots, or pigment under the skin, and not
shagreen patches. He testified that he commonly saw Mongolian spots during autopsies, had
never seen a shagreen patch, and that the area did not “even look close to” photographs he
had seen of shagreen patches. He testified that what Dr. Shaker had identified as tubers were
areas where the membrane covering the brain had been cut with a striker saw. He testified
that Dr. Shaker’s testimony regarding how a skull would be cut to remove the brain was
incorrect, and that a striker saw could cause a cut to soft tissue, especially when used to cut
an infant’s skull. Dr. Levaughn was compensated for his plane ticket and hotel room but was
not being paid to testify; he had found out about the case and “was appalled and offered to
give an opinion.” He testified that this was the second time in the eight months he had been
chief medical examiner that he had offered testimony to rebut Dr. Shaker in a case. Dr.
Levaughn testified he agreed completely with Dr. Davis’s report and that the manner of death
was homicide. He testified that the injuries could not have been caused by a fall from a

                                              -13-
couch, bumping into a toilet or walker, choking, or seizures.

        Dr. Kevin Ess, a child neurologist, testified that he was one of twenty experts
worldwide in tuberous sclerosis. Dr. Ess had seen tubers in the live brains of “dozens and
dozens and dozens” of patients during surgery and stated that the areas identified by Dr.
Shaker looked nothing like tubers. Ninety percent of patients with the disease would have
obvious seizures within the first six months of life. Dr. Ess had never seen subdural
hemorrhages in his three to four hundred patients with tuberous sclerosis. He also testified
that the disease would cause tumors in multiple organs and that there were no findings of
tumors, which would have been obvious. According to Dr. Ess, the areas on the victim’s
lower back “look nothing like” shagreen patches. He testified he had seen thousands of
seizures in children and had never seen them result in an injury to the brain like the victim’s
injury. He stated that Dr. Shaker’s report contained factual errors, misspellings, and
incomplete statements. He stated that Dr. Shaker’s claim that patients with tuberous sclerosis
frequently die suddenly and unexpectedly was incorrect and that death occurred incredibly
rarely or never. On cross-examination, he testified that a brain injury can cause seizures or
posturing. On re-direct examination, he testified that the victim’s brain died over the course
of one to two days.

       The defendant, a stay-at-home father, testified that in May 2010 the sixteen-month-old
victim moved in with him, his wife, his two-year-old daughter, and his son who was also
sixteen months old. He testified that his wife left for work at 7:30 in the morning and his son
and daughter woke around 9:00 a.m., but the victim was still asleep because he had a cold
and had been given medication. He testified that he fed, bathed, and dressed his two children
and put them in front of the television while he made calls and worked on his internet
business. He testified that the victim, who was not yet walking well, woke up, and he bathed
and dressed him and put him with the other children into the living room, and then began to
make him pancakes and chicken and to clean the kitchen. He said that the victim was sick
and “whining” and fell asleep on the couch while the defendant cleaned the bathroom and
kitchen. The defendant let him sleep and continued making his breakfast and cleaning the
kitchen. The victim woke up after fifteen or twenty minutes, and the defendant had not
finished making breakfast. The defendant gave the victim a piece of bread, sat him in the
kitchen where he could see him from the bathroom, and went to clean up the bathroom.
When he returned, the victim was slumped over and appeared to be choking. He was gasping
for breath and gurgling. The defendant looked in his mouth and didn’t see anything. He put
the victim on the couch and began to make telephone calls. He called his wife, Charles
Treece, and 911.

       The defendant testified he told the emergency responders that the victim was choking
on bread and that he told Mr. Treece the victim had fallen from the couch earlier in the day

                                             -14-
and had been choking on bread. He testified that he witnessed the injuries to the victim’s
neck, and that it was his sixteen-month-old son who inflicted the injuries as the two children
fought over the walker. The defendant stated that he rode to the hospital in the passenger
seat of the ambulance. He told doctors and a social worker that the victim had fallen off the
couch, that he had patted the victim back to sleep on the couch, that he had fed him bread
while cooking pancakes, and that he went into the bathroom and when he returned the victim
was slumped over and choking. The defendant went to Vanderbilt Hospital, where his wife
joined him. He testified that he never hit the victim, never disciplined any of the children,
and had never been violent or forceful with the children or hurt them.

        On cross-examination, the defendant confirmed he was the only adult at home after
his wife left. He stated that in the three minutes between the time he called his wife and the
time he called Mr. Treece, he was “trying to make sure the child was okay.” He testified that
the victim fell from the couch while he was cooking breakfast. The defendant made
approximately fifty business-related phone calls that day. He testified that he never gets
frustrated with children. He testified that he did not accidentally or knowingly cause any
harm to the victim. He testified that the victim could not walk but would crawl and that
while the defendant was cleaning the tub a week earlier, the victim was pulling up, the
victim’s hand slipped off the toilet seat, and he hit his chin. He testified that he never told
Dr. Whetstone that the victim fell on a coffee table. The defendant recalled telling the 911
operator he chewed the victim’s food for him and stated he was chewing the victim’s
chicken. He denied telling Detective Roberts that the victim had choked on chicken, and said
he had told everyone that the victim choked on bread. He testified that he had taken off the
victim’s shirt sometime between the morning and when paramedics arrived, but that he did
not do so to hide anything on the shirt. He testified that he laid the victim down even though
the 911 operator told him to hold the victim upright because he did not know he should
continue to hold him upright.

       Ruby Hall-Brisbon, the defendant’s wife and victim’s grandmother, testified that the
defendant was a good father and was peaceful and playful with the children. She testified
that he treated the victim the same as his own children. She did not notice any injuries on
the victim while he lived with her. She testified that she stopped by her apartment for
insurance papers after she found out the victim was in the hospital. She did not see any food
on the table when she arrived, and Detective Roberts arrived immediately afterwards. The
defendant told Ms. Hall-Brisbon that the victim had choked. He told her he was cooking
pancakes for the children and that the victim had been asleep but fallen off the couch. He
told her the victim wouldn’t stop crying and he laid him back down and fed him bread or
pancakes and then the victim started choking. She did not notice any growths or blotches on
the victim. She stated that she might have sent her daughter a picture of a babysitter but that
they had agreed that the defendant would take care of the children. The victim had not had

                                             -15-
any health problems other than a cold. She stated the defendant did not tell her about any
falls the victim had had.

       Dr. Tina Gresham testified that she was a self-employed cardiologist who also had an
“internet-based business” and who first met the defendant in February or March 2010. She
observed the defendant and his two children on four or five occasions before the victim
moved in, and stated that the defendant was attentive, and the children loved him and were
well-behaved. She testified that she observed the defendant with the victim six or seven
times and that he did not treat the victim differently from his children. She did not observe
the defendant display anger or frustration toward the children, and he didn’t raise his voice
other than to tell them to go sit down. She stated that the defendant had control over the
children and that they respected him.

       Earle Gresham, Dr. Gresham’s husband, also testified that he had “an internet-based
business” and that he taught families to start home-based businesses. He testified he first met
the defendant in March or April 2010. He testified that he saw the defendant with his two
children, and the defendant was very attentive and was caring and loving. He testified he
saw the defendant with the victim several times, and there was no difference in the
defendant’s care of the victim and the other children. He did not see the defendant angry or
violent towards or in the presence of the children.

       The State called several rebuttal witnesses. Detective Roberts testified regarding the
apartment’s layout and that there were no stairs in the apartment or leading up to it. The
victim’s step-grandmother testified that the victim could eat by himself, had teeth, and could
chew his own food, and she had never had to chew food for him. She testified that the victim
was bathed every day, that his skin was smooth, that he had no leathery skin, and that he had
Mongolian spots on his bottom. She testified that he had no white hair or light-colored spots
on his body. He had never had seizures. The victim’s mother also denied the presence of
these phenomena associated with tuberous sclerosis.

        The jury found the defendant guilty of aggravated child abuse, but was unable to reach
a verdict on the felony murder charge. The defendant moved for a new trial, alleging that
the State had failed to prove that he acted knowingly with respect to the results of his
conduct. The trial court denied the motion. At the sentencing hearing, the victim’s
grandfather testified regarding the impact of missing out on the victim’s life. The victim’s
step-grandmother testified that she had a breakdown after the trial and was just returning to
work. Her fifteen-year-old daughter had become suicidal at the thought that someone could
murder the victim, and her other children were in counseling. The victim’s mother also
testified that it was difficult to live without him. The State argued that the defendant’s
sentence should be enhanced, and the defendant argued that the enhancement factors filed

                                             -16-
by the State either did not apply or were elements of the offense. The trial court stated on
the record that it considered the factors listed in Tennessee Code Annotated section
40-35-210(b). It found no mitigating factors and enhanced the defendant’s sentence based
on: the fact that the victim was particularly vulnerable based on age or disability; the personal
injuries inflicted on the victim were particularly great; the defendant had no hesitation about
committing a crime where the risk to human life was high; and the defendant abused a
position of trust. The trial court sentenced the defendant to twenty years’ imprisonment to
be served at 100 percent. On appeal, the defendant asserts that the State did not present
sufficient evidence to prove each element of the offense beyond a reasonable doubt. The
defendant also objects that his sentence was enhanced beyond the minimum in the range.

                                         II. Analysis

                               A. Sufficiency of the Evidence

        We interpret the defendant’s first three issues – that the verdict was contrary to the
weight of the evidence, that the elements of the crime were not proven beyond a reasonable
doubt, and that the proof did not show the defendant acted knowingly – as a challenge to the
sufficiency of the evidence. An appellate court must set aside a finding of guilt if the
evidence at trial was insufficient to support that finding beyond a reasonable doubt. Tenn.
R. App. P. 13(e). In evaluating the sufficiency of the evidence, an appellate court must
determine “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). The appellate court may not reweigh the evidence and may not substitute
its inferences for those drawn by the trier of fact. State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). On appeal, the State is entitled to the strongest legitimate view of the evidence and
all reasonable and legitimate inferences to be drawn from it. State v. Evans, 108 S.W.3d
231, 237 (Tenn. 2003). The guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt, and the defendant bears the burden of proving that
the evidence did not support the verdict. Id.

       On appeal, the defendant asserts that the State failed to show that the defendant acted
knowingly. In addition, the defendant objects that the trial court’s definition of “knowingly”
only included the nature of the conduct and not the result of the conduct. The defendant also
objects that the circumstantial evidence did not establish a web of guilt from which the only
reasonable inference was that he was guilty of the crime beyond a reasonable doubt.



                                              -17-
        While the defendant objects that the circumstantial evidence was not so strong as to
exclude every reasonable hypothesis other than the defendant’s guilt, the Tennessee Supreme
Court, in State v. Dorantes, rejected the requirement that the prosecution disprove every
hypothesis save guilt beyond a reasonable doubt. State v. Dorantes, 331 S.W.3d 370, 380
(Tenn. 2011). Instead, direct and circumstantial evidence should be treated the same when
weighing the sufficiency of the evidence. Id. at 381. Accordingly, the standard of review
when reviewing a conviction based on circumstantial evidence remains whether any rational
trier of fact could have found the elements of the crime beyond a reasonable doubt. Id. at
379-81.

        Tennessee Code Annotated § 39-15-401(a) (2010) makes it an offense to “knowingly,
other than by accidental means, treat[] a child under eighteen (18) years of age in such a
manner as to inflict injury.” Child abuse becomes aggravated child abuse with the addition
of serious bodily injury to the child. T.C.A. § 39-15-402(a)(1). Serious bodily injury to a
child includes “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.” T.C.A. §
39-15-402(d). Aggravated child abuse becomes a Class A felony if the abused child is eight
years of age or less. T.C.A. § 39-15-402(b).

        A person acts knowingly with respect to the conduct “when the person is aware of the
nature of the conduct or that the circumstances exist,” and a person acts knowingly with
respect to the result of the conduct “when the person is aware that the conduct is reasonably
certain to cause the result.” T.C.A. § 39-11-302(b). The defendant objects that the trial court
did not instruct the jury on knowingly as it applies to a result-of-conduct offense. Generally,
an offense is a result-of-conduct offense when the result of the conduct is the only element
contained in the statutory definition of the offense. State v. Hanson, 279 S.W.3d 265, 276
(Tenn. 2009). The statutory definition of aggravated child abuse contains elements other
than the result of the conduct, and the Tennessee Supreme Court has held that aggravated
child abuse is a nature-of-conduct offense. Id. “As a nature-of-conduct offense, the
evidence must be sufficient for a rational jury to have concluded, beyond a reasonable doubt,
that the defendant was aware of the nature of his conduct when he treated the victim in such
a manner as to inflict injury, and that, in so doing, he acted other than by accidental means.”
Dorantes, 331 S.W.3d at 386; see also State v. Ducker, 27 S.W.3d 889, 897 (Tenn. 2000)
(holding “that the mens rea of ‘knowing’ refers only to the conduct elements of treatment or
neglect of a child under the child abuse statute and … that the child abuse offenses are not
result-of-conduct offenses”). Accordingly, we conclude that it was not error for the trial
court to refrain from instructing the jury on the definition of knowingly as it applies to a
result-of-conduct offense. Furthermore, we conclude that the defendant’s challenge to the

                                             -18-
sufficiency of the evidence, insofar as it alleges the State failed to prove his awareness that
his conduct was reasonably certain to cause the victim serious bodily injury, is without merit.

        The evidence at trial established that the victim was less than eight years old and that
he suffered, among other injuries, subdural bleeding, retinal hemorrhage, and brain edema;
the victim died as a result. Mr. Bilbrey, Mr. Jones, Mr. Holmes, Dr. Whetstone, and Dr.
Davis testified that they found no evidence that the victim had choked on food. Mr. Bilbrey,
Mr. Jones, and Mr. Holmes saw no indication of seizure when the victim was first assessed
for injury. Mr. Jones, Mr. Holmes, Dr. Whetstone, Dr. Strohlar, Mr. Smith, and Dr. Davis
noted bruising on the victim’s neck. Dr. Whetstone also noted blood in the victim’s throat
with no obvious source. Dr. Whetstone, Dr. Strohlar, Dr. Hain, and Dr. Davis found a
subdural hemorrhage. Dr. Strohlar, Dr. Hain, and Dr. Davis testified that the victim had
massive retinal bleeding and that his brain was swollen. Dr. Davis found a bruise under the
victim’s scalp. Dr. Strohlar, Dr. Hain, and Dr. Davis testified that the victim died from a
non-accidental injury at the hands of someone with the strength and coordination of an adult,
and Dr. Levauhgn testified that he agreed completely with Dr. Davis’s conclusions. Dr.
Strohlar and Dr. Hain testified that the injury required such force that a normal person
observing the traumatic event would have had the impulse to rescue the victim. Dr. Hain,
Dr. Davis, Dr. Levaughn, and Dr. Ess testified that the victim did not have tuberous sclerosis,
and Dr. Hain and Dr. Ess testified that tuberous sclerosis would not have caused his injuries.
The victim’s mother and step-grandmother testified that the victim had previously been
healthy and that the physical signs of tuberous sclerosis identified by Dr. Shaker were absent.
While Dr. Shaker testified that the victim died of head trauma resulting from seizure
associated with tuberous sclerosis and that the victim’s death was due to disease, it is clear
from the verdict that the jury found Dr. Shaker’s testimony to be at a minimum not credible,
if not irresponsible, possibly perjurious, and deserving professional sanction.

        By the defendant’s own testimony, he was the only adult with the children from
approximately 7:30 a.m. until he called 911 at a little after 3:00 p.m. The defendant was
unable to account for the bulk of the day, and he allowed three minutes to elapse after his
initial call to his wife regarding the victim’s injury. The defendant offered numerous and
inconsistent accounts of how the victim suffered injury both prior to and during trial – that
the victim choked on bread or chicken, that the victim fell against the toilet or a walker or
a table, that the victim fell off the couch, and that another sixteen-month-old had injured the
victim. The defendant’s wife and three recent acquaintances stated that he was not violent
with the children. The jury was called on to determine whether it found the testimony of the
medical experts who stated that the victim died of non-accidental trauma at the hands of an
adult or the testimony of the defendant, which did not account for the injuries, more
compelling. The evidence was sufficient for the jury to find that the defendant, who was the
only adult in the home at the time of the injury, treated the sixteen-month-old victim in such

                                              -19-
a manner as to inflict serious bodily injury. The medical testimony that a person witnessing
the traumatic event would panic and want to rescue the child was a sufficient basis for a
rational trier of fact to infer that the defendant acted knowingly in that he was aware of the
nature of his conduct. This Court may not substitute its inferences for those of the jury, and
we conclude that this issue is without merit.

                                     B. Sentencing Issues

       The defendant also challenges his sentence, contending that all of the enhancement
factors found by the trial court were improperly applied. The defendant argues that the trial
court could not properly have found that the personal injuries inflicted on the victim were
particularly great, since serious bodily injury was an element of the offense. He likewise
alleges that, because the offense requires that the victim be less than eight years old, the trial
court improperly relied on the fact that the victim was particularly vulnerable because of age
or physical or mental disability. He objects that the record is silent regarding whether the
defendant hesitated to commit a crime where risk to human life was high. The defendant
concedes that courts have approved the use of the defendant’s abuse of a position of trust as
an enchancement factor in similar cases, but submits that this, too, is an element of the crime
because the victim was under eight years old.

       The State concedes that the fact that the victim’s injuries were particularly great is an
element of the crime. The State likewise concedes that there was no evidence regarding the
defendant’s hesitation in committing a crime where the risk to human life was high.
However, the State argues that the remaining two enhancement factors – that the victim was
particularly vulnerable due to age and that the defendant abused a position of trust – are
sufficient to support the sentence.

       When a trial court’s sentencing decision reflects a proper application of the purposes
and principles of the Sentencing Act, the sentence is reviewed for an abuse of discretion.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Furthermore, a sentence that falls within
the appropriate statutory range, like the one at issue in this case, and reflects a proper
application of the purposes and principles of the Sentencing Act, is granted a presumption
of reasonableness. Id. In this case, the defendant was sentenced as a Range I offender, and
the sentencing range was fifteen to twenty-five years. T.C.A. § 40-35-112(a)(1).

        Tennessee Code Annotated section 40-35-114 mandates that “the court shall consider,
but is not bound by” certain enhancement factors “[i]f appropriate for the offense and if not
already an essential element of the offense.” The defendant challenges the application of
enhancement factor (4), a finding that the “victim of the offense was particularly vulnerable
because of age or physical or mental disability.” T.C.A. § 40-35-114(4). The defendant

                                              -20-
alleges that age is already an element of the offense. Aggravated child abuse becomes a
Class A felony when the victim is under eight years of age. T.C.A. § 39-15-402(b). That the
victim’s age falls below the threshold is an element of the offense which the State must prove
beyond a reasonable doubt. Ducker, 27 S.W.3d at 899.

        Nevertheless, the fact that age is an element of the crime does not, in itself, prohibit
the use of the vulnerability enhancement factor. State v. Adams, 864 S.W.2d 31, 35 (Tenn.
1993), superseded by statute on other grounds, as stated in State v. Jackson, 60 S.W.3d 738,
741-42 (Tenn. 2001). The relevant inquiry is “whether evidence in the record with regard
to the victim’s age or physical and mental attributes demonstrated an inability to resist the
crime, summon help, or testify at a later date.” State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997). While “[a] vulnerability that is wholly irrelevant to the crime” may not be used to
enhance a sentence, a vulnerability that fits the above criteria may be used by the trial court.
State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001). The State must present evidence of
vulnerability in addition to evidence of age, but the evidence need not be extensive. Id.
Additional weight may be given to age when the victim is extremely young or old. Poole,
945 S.W.2d at 97. This court has previously approved the use of this enhancement factor in
a conviction for aggravated child abuse. State v. McField, No. E2009-02472-CCA-R3-CD,
2011 WL 2534856, at *19 (Tenn. Crim. App. Sept. 28, 2011); State v. Tallant, E2006-02273-
CCA-R3-CD, 2008 WL 115818, at *32 (Tenn. Crim. App. Jan. 14, 2008); State v. Benn, No.
E2001-01958-CCA-R3-CD, 2003 WL 934240, at *11 (Tenn. Crim. App. Mar. 10, 2003);
State v. Gates, No. E1998-00131-CCA-R3-CD, 2000 WL 46005, at *6 (Tenn. Crim. App.
Jan. 21, 2000); State v. Frazier, No. M1998-00498-CCA-R3-CD, 1999 WL 1209518, at *6
(Tenn. Crim. App. Dec. 17, 1999). Here, testimony showed that not only was the victim
more vulnerable to the injuries associated with shaking due to his age, but he was also unable
to walk unassisted, and – according to the defendant – chew his own food. The sixteen-
month-old victim could not summon help or testify. This factor is amply supported by the
record.

       The defendant likewise claims that enhancement factor (14), the defendant’s abuse
of a position of public or private trust, is essentially an element of the crime because a child
eight or under must always be entrusted to a supervising adult. The Tennessee Supreme
Court has stated that the position of parent, step-parent, babysitter, teacher, and coach are “a
few obvious examples” of positions of trust. State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.
1996). Moreover, “[w]here the adult perpetrator and minor victim are members of the same
household, the adult occupies a position of ‘presumptive private trust’ with respect to the
minor.” State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999). Despite the defendant’s
assertion, not every adult occupies a position of private trust with respect to a child under
eight. Kissinger, 922 S.W.2d at 489 (concluding that a casual visitor did not occupy a
position of trust). Here, the victim’s mother entrusted the victim to the defendant’s

                                              -21-
household while she finished her schooling. The victim’s mother testified that she was told
that a babysitter would be caring for her son, and the defendant would provide only incidental
care. The defendant, however, ended up as the main caretaker of the victim. The trial court
properly found that the defendant abused a position of trust.

        The State concedes error in the application of the remaining two enhancement factors.
We note that a court may in certain circumstances rely on factor (10), that the defendant had
no hesitation about committing a crime when the risk to human life was high, to enhance a
sentence for aggravated child abuse because the State may prove serious bodily injury
without showing a risk of death. State v. Trehern, No. E2009-00066-CCA-R3-CD, 2010 WL
2695635, at *13 (Tenn. Crim. App. July 7, 2010); see also State v. Jordan, No.
01C01-9801-CR-00021, 2000 WL 85364, at *19 (Tenn. Crim. App. Jan. 27, 2000); T.C.A.
§ 39-11-106(a)(34)(A). Furthermore, although the defendant claims there was no proof of
a lack of hesitation, the Tennessee Supreme Court has clarified that the determinative
language in this factor is that the risk to human life was high since hesitation is rarely
probative of culpability and does not readily lend itself to proof. State v. Jones, 883 S.W.2d
597, 602 (Tenn. 1994), superseded by statute on other grounds, as recognized in State v.
Carico, 968 S.W.2d 280, 288 n.9 (Tenn. 1998). The State also concedes error in the
application of factor (6) that the personal injuries inflicted upon the victim were particularly
great. “[P]roof of serious bodily injury will always constitute proof of particularly great
injury.” Id. Moreover, this court has described death as the “ultimate serious bodily injury.”
State v. Neighbours, No. M2000-02594-CCA-R3-CD, 2002 WL 489223, at *5 (Tenn. Crim.
App. Mar. 28, 2002). The relevant inquiry in determining whether the factor may be applied
is “whether the facts which establish ‘serious bodily injury’ are the same facts which show
that the injury was ‘particularly great.’” Jones, 883 S.W.2d at 602. While courts have
concluded that this factor was improperly applied when death constituted the serious bodily
injury that was an element of the crime, e.g., State v. O’Neal, No.
M2008-00146-CCA-R3-CD, 2009 WL 2951269, at *8 (Tenn. Crim. App. Sept. 15, 2009);
Tallant, 2008 WL 115818, at *31, we note that there was ample evidence of serious bodily
injury – including subdural and retinal hemorrhages and brain edema – apart from the
evidence of the victim’s death.

      Nevertheless, even if we accept the State’s concession that these factors were
improperly applied to enhance the sentence, we conclude that the sentence should be upheld.

              [A] trial court’s misapplication of an enhancement or mitigating
              factor does not invalidate the sentence imposed unless the trial
              court wholly departed from the 1989 Act, as amended in 2005.
              So long as there are other reasons consistent with the purposes
              and principles of sentencing, as provided by statute, a sentence

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              imposed by the trial court within the appropriate range should be
              upheld.

State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). A straightforward application of this
holding to the current case demonstrates that the sentence assigned by the trial court should
be upheld. Even if we were to conclude that the trial court erred in applying some of the
enhancement factors, there were “other reasons consistent with the purposes and principles
of sentencing” for imposing the within-range sentence. In Bise, the Tennessee Supreme
Court upheld a sentence in the middle of the range even though it found that the sole
enhancement factor had been improperly applied. The trial court in Bise had relied on the
need for deterrence and on the defendant’s intoxication, which the Tennessee Supreme Court
concluded were “sound reasons” to impose the sentence. Bise, 380 S.W.3d at 709. Here,
the defendant’s abuse of a position of trust and the victim’s vulnerability provide a firm basis
for the trial court’s decision. The trial court did not abuse its discretion.

                                       CONCLUSION

        Because we conclude that the evidence is sufficient to support the verdict and that the
trial court did not abuse its discretion in imposing a sentence, we affirm the judgments of the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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