         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE         FILED
                             JUNE 1998 SESSION
                                                       July 20, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9707-CR-00276
      Appellee,                      )
                                     )    DAVIDSON COUNTY
VS.                                  )
                                     )    HON. THOMAS H. SHRIVER,
REBECCA CUREVICH,                    )    JUDGE
                                     )
      Appellant.                     )    (Aggravated Child Abuse, Child
                                     )     Neglect)



FOR THE APPELLANT:                        FOR THE APPELLEE:

THEODORA A. PAPPAS                        JOHN KNOX WALKUP
Washington Square Building                Attorney General and Reporter
222 Second Avenue North
Suite 360M                                KAREN M. YACUZZO
Nashville, TN 37201                       Assistant Attorney General
(Appeal Only)                             Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
JACK A. BUTLER                            Nashville, TN 37243-0493
First American Building
Suite 2395                                VICTOR S. JOHNSON, III
315 Deaderick Street                      District Attorney General
Nashville, TN 37238-2395
(Trial Only)                              DIANE S. LANCE
                                          WILLIAM R. REED
                                          Asst. District Attorneys General
                                          Washington Square Building
                                          222 Second Avenue North
                                          Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



      The defendant, Rebecca Curevich, appeals her Davidson County jury

convictions for aggravated child abuse and child neglect. The defendant

contends on appeal that:

              (1) she was unfairly prejudiced by the trial court’s
              refusal to allow the opinion testimony of a police
              officer;

              (2) the evidence presented at trial was insufficient to
              support her conviction for aggravated child abuse;

               (3) she was unfairly prejudiced by the state’s
              improper cross-examination; and

              (4) the trial court imposed an excessive sentence.


After a careful review of the record, we AFFIRM the judgment of the trial court.



                                          I.



      The defendant gave birth to the victim while incarcerated. The defendant

and her mother, Paulette Nicholson, agreed that Nicholson should have custody

of the child. This informal custody arrangement continued after the defendant

was released from her incarceration.



      The defendant admitted to having a ten (10) year addiction to the drug,

Dilaudid. This addiction continued after the victim was born. The defendant

subsequently enrolled in a Methadone treatment program. Part of the treatment

program allowed the defendant to take Methadone home for self-medication.

The defendant’s dosage at the time the offenses occurred was fifty (50)

milligrams.



      In June 1994, Nicholson left the victim in the defendant’s care at

approximately 4:00 p.m. in order to visit Nicholson’s husband in the hospital.

The child was approximately six (6) months old. The defendant’s aunt, Brenda

                                          2
Gower, called to check on the defendant between 10:00 and 10:15 p.m. The

defendant did not indicate to her aunt that anything was wrong with the child.



       When Nicholson returned at approximately 10:40 p.m., the defendant was

sitting at the kitchen table working a puzzle. When Nicholson went into the other

room to check on the child, she noticed the child was having trouble breathing.

When she picked the child up, Nicholson stated the child turned blue and

became limp. Nicholson instructed the defendant to call 911. When the child

arrived at the hospital, he was unable to breathe on his own and a tube had to

be inserted in his throat. There is no question that the child would have died if

he had not received emergency medical care.



       The defendant testified that after her mother left, she drank the fifty (50)

milligram dose of Methadone and played with the child for approximately forty-

five (45) minutes. She stated that on the floor where they played was a can of

soda, a pack of cigarettes, an ashtray, a lighter, and her empty Methadone

bottle. The defendant testified she cannot remember her aunt calling that night.

When she awoke, the defendant said she noticed the child’s labored breathing

and decided to call 911. The defendant stated that Nicholson arrived home

immediately after she decided to call 911.



       When the child did not respond to conventional treatment at the hospital,

the attending physicians administered Narcan, which counters the effects of

narcotics. The child immediately reacted to the Narcan and began to have

seizures. The child subsequently tested positive for Methadone. Dr. Jayant

Deshpande, one of the doctors who treated the child, testified that a child the

weight of the victim would have to ingest at least twenty-eight (28) milligrams of

Methadone to cause breathing to cease.




                                          3
                                           II.



         The defendant’s first assignment of error is the trial court erred in refusing

to allow Detective Steve Cleek to give his opinion as to whether he thought the

child’s ingestion of Methadone was accidental.



         The trial court conducted a hearing outside the presence of the jury to

determine the admissibility of Detective Cleek’s testimony. The trial court

concluded the detective’s opinion was inadmissible and asked the parties if they

agreed. Neither side objected to the court’s ruling. The defendant, therefore,

has waived this issue. See Tenn. R. App. P. 36(b).



         Regardless of the waiver, the trial court was within its discretion to exclude

the testimony. The defendant wanted the detective to state his opinion based

upon his investigation of the facts of the case. Witnesses are allowed, with

limitations, to testify as to their opinion regarding the ultimate issue. Tenn. R.

Evid. 704; State v. Shuck, 953 S.W.2d 662, 668 (Tenn. 1997). However, this

rule is tempered by the limitation that no opinion testimony on the ultimate issue

is allowed when a jury could readily draw its own conclusions on the matter,

unaided by the witness’ opinion. Cohen et al., Tennessee Law of Evidence, §

704.2 (3d ed. 1995); Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn. 1987).

Furthermore, the admission of expert opinion testimony must “substantially assist

the trier of fact to understand the evidence or determine a fact in issue . . .”

Tenn. R. Evid. 702; McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264 (Tenn.

1997).



         The detective’s experience investigating child abuse cases and his

investigation in this case did not allow him to formulate a more informed

conclusion than the jury. The jury was apprised of the relevant facts and were

fully capable of drawing their own inferences and conclusions without the opinion



                                            4
of Detective Cleek. The detective’s opinion would not substantially assist the

jury in determining this issue.



       The trial court did not abuse its discretion in excluding this evidence. See

State v. Shuck, 953 S.W.2d at 669 (holding appellate review is limited to an

abuse of discretion standard). This issue is without merit.



                                         III.



       The defendant further contends the evidence presented at trial was

insufficient to sustain her conviction for aggravated child abuse. Aggravated

child abuse requires the defendant knowingly, other than by accidental means,

treat a child under eighteen (18) years of age in such a manner as to inflict injury,

or neglect such a child so as to adversely affect the child’s health and welfare;

and the act of abuse result in serious bodily injury to the child. Tenn. Code Ann.

§§ 39-15-401, 39-15-402(a)(1).



                                         A.



       When an appellant challenges the sufficiency of the evidence, the

standard of review is whether, after viewing the evidence in the light most

favorable to the state, 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, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838

S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the state

is entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). This Court will not reweigh the evidence,

reevaluate the evidence, or substitute its evidentiary inferences for those

reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).


                                          5
Furthermore, in a criminal trial, great weight is given to the result reached by the

jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).



       Once approved by the trial court, a jury verdict accredits the witnesses

presented by the state and resolves all conflicts in favor of the state. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof

are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). A jury's guilty verdict removes the

presumption of innocence enjoyed by the defendant at trial and raises a

presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The

defendant then bears the burden of overcoming this presumption of guilt on

appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).



                                          B.



       The state contended the defendant intentionally administered the

Methadone to the child. The defendant asserted, inter alia, that while she was

asleep, the child crawled to her bottle of Methadone, put the bottle in his mouth,

and drank the remainder of its contents. She stated, “there might have been

residue in it.” The defendant also referred to “other members” of her family who

used and had access to Methadone. In her testimony at trial, the defendant

accused her mother, Paulette Nicholson, of sneaking into the house while she

was asleep and administering Methadone to the child.



       The jury obviously discredited the testimony of the defendant. The

defendant admitted to possessing fifty (50) milligrams of Methadone before

Nicholson left the child in her custody. The defendant testified she, herself,

consumed the entire contents of her bottle of Methadone, yet an expert testified

the child would have had to ingest at least twenty-eight (28) milligrams of the



                                          6
drug. The defendant’s various explanations of how the victim could have

ingested the Methadone strain credulity. Looking at the evidence in a light most

favorable to the state, the evidence is sufficient to support the conviction for

aggravated child abuse.



       This issue is without merit.



                                         IV.



       The defendant also contends that she was unfairly prejudiced by

questions asked by the assistant district attorney which assumed facts never

introduced into evidence. The state contends the questions were proper under

the prior inconsistent statement rule. See Tenn. R. Evid. 613.



       The defendant was asked on cross-examination whether she told Dr. Ed

Dotson that she was taking one (1) Dilaudid per day in July and August 1994.

The defendant replied, “If I told him that, then, yes ma’am, it is.” The defendant

subsequently testified that she was “clean” from March 22, 1994, until the date of

the trial. The state countered by asking the defendant, “Okay. But you just told

me that Ed Dotson -- you told Ed Dotson you were taking one Dilaudid a day in

July and August of 1994.” The defendant responded, “Well then, I honestly don’t

know the answer.” The state never introduced evidence from Dr. Dotson or any

other witness that the defendant actually made this admission.



        When a witness is examined regarding a prior inconsistent statement,

counsel is not required at that time to show the statement or disclose its contents

to the witness, but on request must show or disclose it to opposing counsel.

Tenn. R. Evid. 613(a). To use a prior inconsistent statement to impeach a

witness, counsel must have a good faith belief the inconsistent statement was

actually made. Cohen et al., Tennessee Law of Evidence § 613.1 (3d ed. 1995).



                                          7
There is no requirement that counsel introduce the prior statement into evidence.



       The testimony of the defendant on her direct and cross-examination was

difficult to follow as to exactly when she was in various treatment programs and

when she was drug-free. Prior to the prosecutor’s first question concerning her

prior statement to Dr. Dotson, it is conceded by the state that it is unclear

whether she had testified that she had been drug-free in July and August 1994.

Thus, it could have been inappropriate at that time to have asked about the prior

statement to Dr. Dotson. However, the defendant did testify subsequently that

she was drug-free during this time. Clearly, the prior inconsistent statement was

proper at that time. Any possible error as to the timing of the first question was

harmless. Tenn. R. App. P. 36(b).



       The defendant’s contention that the questions were improper because

they “assumed facts that were not introduced into evidence” is without merit.

There is no legal requirement that a prior inconsistent statement be introduced

into evidence. Although there must be a factual basis for the question, the

defendant has not shown the prosecutor lacked that basis.



       Furthermore, there was no objection to either question. The failure to

object deprived the trial court and this Court of any opportunity to ascertain the

factual basis of the question. The issue is waived. Tenn. R. App. P. 36(a).



       This issue is without merit.



                                         V.



       The defendant’s final assignment of error is that the trial court erred by

imposing a maximum sentence of twelve (12) years for the aggravated child




                                          8
abuse conviction.1



                                A. Standard of Review



       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).



       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805

S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a

trial court should start at the minimum sentence, enhance the minimum sentence

within the range for enhancement factors and then reduce the sentence within

the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No

particular weight for each factor is prescribed by the statute, as the weight given

to each factor is left to the discretion of the trial court as long as the trial court

complies with the purposes and principles of the sentencing act and its findings

are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986);

State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago,

914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-

210 Sentencing Commission Comments. Nevertheless, should there be no


       1
          This offense was committed on June 26, 1994, when all forms of
aggravated child abuse were Class B felonies. Effective July 1, 1994, aggravated
child abuse of a child six (6) years of age or less was elevated to a Class A felony.
1994 Public Acts, Chapter 978. The defendant was, therefore, properly sentenced
for a Class B felony.

                                              9
mitigating factors, but enhancement factors are present, a trial court may set the

sentence above the minimum within the range. Tenn. Code Ann. § 40-35-

210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).



                              B. Length of Sentence



        The trial court imposed the maximum sentence after finding five (5)

enhancement factors and no mitigating factors. The enhancement factors found

applicable by the trial court are as follows:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those
              necessary to establish the appropriate range, Tenn.
              Code Ann. § 40-35-114(1);

              (2) The victim of the offense was particularly
              vulnerable because of age, Tenn. Code Ann. § 40-35-
              114(4);

              (3) The defendant had no hesitation about committing
              a crime when the risk to human life was high, Tenn.
              Code Ann. § 40-35-114(10);

              (4) The felony was committed while the defendant
              was on parole, Tenn. Code Ann. § 40-35-114(13);
              and

              (5) The defendant abused a position of private trust,
              Tenn. Code Ann. § 40-35-114(15).




        The trial court properly noted that the defendant had previously been

convicted of forgery and attempted tampering with evidence. The trial court,

therefore, properly applied enhancement factor (1). Additionally, the defendant

admitted she was on parole for these crimes at the time the instant offenses

were committed. Therefore, the trial court properly applied enhancement factor

(13).



        The court further found the six-month old victim was particularly

vulnerable due to his age. Tenn. Code Ann. § 40-35-114(4). The age of the

victim, standing alone, does not justify application of this enhancing factor. State

                                          10
v. Poole, 945 S.W.2d at 96. Although the age of the victim is an element of the

offense of aggravated child abuse, this does not necessarily preclude the

application of this factor. State v. Walton, 958 S.W.2d 724, 728 (Tenn. 1997).

Rather, the trial court should consider: (1) whether, because of age, the victim

was particularly unable to resist the crime, summon help, or testify at a later

date; (2) whether the victim’s age (extremely young or old) is entitled to

additional weight; and (3) whether the vulnerability of the victim made the victim

more of a target for the offense or, conversely, whether the offense was

committed in such a manner as to render the vulnerability of the victim irrelevant.

Id.; Poole, 945 S.W.2d at 96-97. The victim was completely unable to resist the

lethal dose of narcotics administered by the defendant. Also, because of his

age, the six-month old child was unable to call for help and was spared death

only by the fortuitous return of his grandmother. The victim’s age was properly

considered in enhancing the sentence.



       The state concedes that Tenn. Code Ann. § 40-35-114(10), that the

defendant had no hesitation about committing a crime when the risk to human

life was high, was inappropriately applied. Serious bodily injury is an essential

element of aggravated child abuse.



       Finally, the court found the defendant had abused a position of private

trust. Tenn. Code Ann. § 40-35-114(15). The determination that a position of

trust exists depends on the nature of the relationship, not on its length or

formality. State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). The parent-

child relationship is an obvious example of a position of trust. Id. According to

the defendant’s testimony, the grandmother did not want to leave the child with

the defendant, but did so only after the defendant argued with her. Therefore,

the child was entrusted to the care of the defendant who abused this trust. This

enhancement factor was properly applied.




                                         11
       The record supports the application of enhancement factors (1), (4), (13),

and (15) to the defendant’s sentence. The erroneous application of an

enhancement factor by the trial court does not necessarily lead to a reduction in

sentence. State v. Lavender, ___S.W.2d___(Tenn. 1998). The sentence

imposed by the trial court was proper.



       This issue is without merit.



                            C. Alternative Sentencing



       The defendant contends that due to her chronic substance abuse, the trial

court erred in not considering her for community corrections.



       The Community Corrections Act establishes a program of community-

based alternatives to incarceration for certain eligible offenders. See Tenn.

Code Ann. § 40-36-103. A defendant is eligible for participation in a community

corrections program if the defendant satisfies several minimum eligibility criteria

set forth at Tenn. Code Ann. § 40-36-106(a)(1)-(7). The defendant does not

meet the minimum criteria since aggravated child abuse is not a non-violent

felony. See Tenn. Code Ann. §§ 40-36-106(a)(3), 102(12).



       An offender who does not meet the minimum criteria under Tenn. Code

Ann. § 40-36-106(a) and is considered unfit for probation due to substance

abuse or mental problems may still be eligible for community corrections under

the special needs provision of Tenn. Code Ann. § 40-36-106(c). See State v.

Grigsby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997). However, before a

defendant may be sentenced pursuant to Tenn. Code Ann. § 40-36-106(c), he or

she must be found statutorily eligible for probation. State v. Grigsby, 957 S.W.2d

at 546; State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).




                                         12
       A defendant is eligible for probation if the sentence received by the

defendant is eight years or less. Tenn. Code Ann. § 40-35-303(a). The

defendant, due to the length of her sentence, is not eligible for probation.

Furthermore, a person convicted of aggravated child abuse is precluded from

receiving probation. Tenn. Code Ann. 40-35-303(a). Thus, since the defendant

is ineligible for probation, she is precluded from community corrections under the

special needs provision.



       This issue is without merit.



       Accordingly, the decision of the trial court is AFFIRMED.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:




________________________________
CURWOOD WITT, JUDGE




________________________________
R. LEE MOORE, JR., SPECIAL JUDGE




                                         13
