        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 23, 2010

                  STATE OF TENNESSEE v. MICHAEL W. POE

                     Appeal from the Circuit Court for Rhea County
                         No. 16721     J. Curtis Smith, Judge




                No. E2010-00220-CCA-R3-CD - Filed February 23, 2011


Following a jury trial, the Defendant, Michael W. Poe, was convicted of first degree felony
murder and aggravated child abuse, a Class A felony. See Tenn. Code Ann. § 39-13-202, -
15-402(b). The trial court sentenced the Defendant to consecutive terms of life in prison for
his first degree felony murder conviction and twenty-five years as a violent offender for his
aggravated child abuse conviction. In this direct appeal, the Defendant contends that: (1) the
trial court erred when it denied his motion for judgment of acquittal; (2) the trial court erred
when it failed to declare a mistrial after one juror made a comment to another juror about the
trial; (3) the trial court erred in failing to ask the other jurors whether they heard the comment
at issue; (4) the trial court erred when it failed to remove or disable the televisions and radios
from the jurors’ motel rooms; (5) the trial court erred when it applied two inapplicable
enhancement factors and failed to consider one mitigating factor; (6) the trial court erred
when it imposed consecutive sentences; (7) the trial court did not award the proper amount
of jail credit; and (8) the trial court erred when it failed to dismiss the indictment. After our
review, we affirm the judgments of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Larry G. Roddy, Dayton, Tennessee, for the appellant, Michael W. Poe.

Robert E. Cooper, Jr., Attorney General and Reporter, Matthew Bryant Haskell, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and James Pope, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                OPINION

                                   Factual Background
       This appeal arises from the death of Matthew Poe, a twenty-day-old baby, on August
18, 2006. In its October 2006 session, a Rhea County grand jury issued an indictment
alleging that the Defendant committed one count of first degree murder, one count of first
degree felony murder, and one count of aggravated child abuse. The Defendant’s trial was
conducted in Rhea County, with a jury from Franklin County, from July 20-23, 2009.

       Officer Justin Jackson testified that he worked as a police office for the City of
Dayton in August 2006. He said that, at 11:36 a.m. on August 18, 2006, he heard a
transmission on his radio that a baby was in distress at the Defendant’s residence. Officer
Jackson recalled that, when he arrived at the scene at approximately 11:40 a.m., Tammy
Perkins,1 the Defendant’s wife, was waiting at the top of the stairway outside the apartment.
He said that, when he went inside the apartment, he observed the Defendant kneeling over
a small infant who was lying on the living room floor. Officer Jackson described the
Defendant’s demeanor as “calm” and said that he never saw the Defendant cry or lose his
composure. However, he noted that Ms. Perkins “was pretty hysterical.” He testified that
he did not see the Defendant performing CPR on the victim when he arrived, but that the
Defendant told him that he had been performing CPR. Officer Jackson said that he and the
Defendant then performed CPR on the victim, with Officer Jackson doing the compressions
and the Defendant breathing into the victim’s mouth.

        Officer Jackson testified that he noticed bruising on the baby’s neck, hairline, and
back. He also said that he noticed several bloody baby wipes on the coffee table. He stated
that the paramedics arrived a few minutes after he did and immediately took the baby to the
hospital. He elaborated, “As soon as they c[a]me in the door I think they realized the severity
of the situation and they just reached down and got the baby and left with it.” Officer
Jackson also recalled that the Defendant never asked him which hospital the paramedics were
taking his son to, but that Ms. Perkins asked him “[a] minute or two after the ambulance was
gone.”

        Ms. Perkins testified that she suffers from seizure disorder, cannot read, write, or drive
a car, and receives a disability check for her condition. She also said that she has scoliosis
and cannot lift a lot of weight.



        1
          Throughout the transcript, the Defendant’s wife is called “Mrs. Poe”; however, when she testified
at the Defendant’s trial, she said her last name was “Perkins.” Thus, in this opinion, we will refer to her as
Ms. Perkins.

                                                     -2-
       Ms. Perkins said that she and the Defendant married in 2004, after dating for only one
week. Subsequently, when she became pregnant and informed the Defendant, she recalled
that he told her that he wanted a DNA test and accused her of cheating on him with the
preacher that married them. She said that the victim was born six-weeks premature, on July
29, 2006, via an emergency C-section. She recalled that the victim stayed in the hospital for
two weeks after he was born and that, during that time, she and the Defendant stayed at the
Ronald McDonald House across the street from the hospital because she did not want to
leave her son. She said that she and the Defendant attended classes at the hospital about
caring for their baby. Ms. Perkins testified that the victim was released from the hospital on
August 12, 2006, and that she and the Defendant stayed with the Defendant’s mother for
several days before they brought the victim to their apartment.

        Ms. Perkins said that they took the victim to the doctor for a check-up on August 14,
2006, and that the victim was healthy. She testified that she and the Defendant were trying
to fix up their apartment before they brought the victim home. One day in particular, she said
that they left the victim at the Defendant’s mother’s house when they went to the apartment.
She stated that the Defendant went to sleep at the apartment and that she was unable to wake
him up to ask him to drive her back to his mother’s house in Sale Creek. Ms. Perkins
explained, “I wanted to go take my son some diapers in Sale Creek, and I was missing my
son.” Thus, she said she walked from Dayton to Sale Creek, minus the distance that a police
officer drove her from Wal-Mart to the Sale Creek city limit.

        On the night of August 17, 2006, Ms. Perkins, the Defendant, and the victim arrived
at their apartment when it was dark outside. Ms. Perkins said she showed the victim to Ms.
Boles, her neighbor, and that Ms. Boles came up to their apartment for a bit, but left around
9:30 p.m. Ms. Perkins said that the Defendant gave the victim a bath that night.

        She said that she went to bed around 10:00 or 10:30 p.m., after taking some
medications—Percocet for the pain from her C-section and Depakote for her epilepsy. She
said that night was the first time she took the medications together and that they made her
sleepy. Ms. Perkins recalled that she slept in the bedroom. She testified that, when she went
to bed, the victim and the Defendant were in the living room. The Defendant was watching
television, and the Defendant said “[h]e wanted to spend some time with his son.”

       Ms. Perkins said that, when she awoke the next morning around 10:00 or 10:30 a.m.,
the victim was “[i]n his bassinet, not breathing.” She said she hollered for the Defendant,
who was awake in the living room. She testified that it took him ten or fifteen minutes to
come into the bedroom. Ms. Perkins stated that when the Defendant eventually came into
the room, “[h]e grabbed Matthew up, take him in the living room, put him on the couch and



                                             -3-
I called 911.” She said that she and the Defendant tried to carry out the CPR instructions she
was given over the phone.

        Ms. Perkins said that, when she saw that her baby was not breathing, she was “very
upset” and cried. She recalled that the Defendant did not seem to be upset, nor did he cry.
Ms. Perkins said that, when the ambulance left, she called the Defendant’s parents to tell
them that the victim was not breathing and was being taken to the hospital. She said that,
after the ambulance left, the Defendant did not come out of the apartment right away and that
she had to wait for him, in his truck, for fifteen or twenty minutes.

       Ms. Perkins testified that she was very upset when the hospital personnel told her that
the victim was dead, but that the Defendant “acted like he was calm.” She recalled that, at
the victim’s funeral, the Defendant “pulled Matthew’s top up and showed [her] where they
done an autopsy at.” She testified that she “passed out” and missed part of her son’s funeral.

        Ms. Perkins said that the Defendant never told her that he had another child. She
testified that she did not do anything to harm her child, but that she did not see the Defendant
do anything to harm the victim either.

        On cross-examination, Ms. Perkins maintained that she walked approximately eight
miles from her apartment to the Defendant’s mother’s house. When asked how she was able
to do that when she was still in pain from her C-section, Ms. Perkins replied, “But I wasn’t
going to let my son go without diapers. My son comes first.”

       Defense counsel also confronted Ms. Perkins about many prior inconsistent statements
she had made. During the trial, she testified that the medication she took “knocked [her] out”
and that she did not wake up during the night to feed the victim, even though it was her turn.
She admitted that she lied to Tennessee Bureau of Investigation (TBI) Special Agent Luke
Mahonen on two prior occasions—once when she told him that she woke up at 4:00 or 5:00
a.m. to feed the victim and once when she told him that she awoke at 3:00 a.m. She also
admitted that she lied during a previous court proceeding when she said that she woke up at
4:00 or 5:00 a.m. to feed her son. When asked why she lied in court, Ms. Perkins responded,
“[B]ecause I was afraid for my life, because my husband, after we was married for two years,
he threatened to kill me.” She admitted that she lived with the Defendant until October 2006,
but explained, “[B]ecause he threatened and threatened and threatened to kill me.”

      Ms. Perkins also admitted to lying in previous court proceedings when she said that
she woke up at 3:30 or 4:00 a.m. to feed the victim. She acknowledged that she told Special
Agent Mahonen that she woke up at 3:00 a.m., and then at 6:00 a.m., to feed the victim and



                                              -4-
change his diaper. When asked if she previously testified that her son was not breathing at
3:00 a.m., Ms. Perkins said she “remember[ed] nothing about it.”

       Ms. Perkins said that she did not remember saying in a previous court proceeding that
she did not take any medication on the night of August 17, 2006. However, she then said that
she was not in pain when she went to sleep, but woke up in pain around 11:30 p.m. and took
medication. Later on, though, she testified, “I was planning on just laying down to see if I
could quit hurting, because I was hurting real bad, and I ended up sleeping to 11:30.”

        Ms. Perkins also testified that the Defendant went to “most” of the parenting classes
at the hospital, and she said that she lied when she previously testified that he did not go to
any of the classes. Ms. Perkins admitted that she did not begin to accuse the Defendant of
hurting the victim until Special Agent Mahonen confronted her with the notion that it was
either her or the Defendant who did.

       Elizabeth Smith, a registered nurse who was working at the Rhea County Medical
Center on August 18, 2006, testified that, “around 11-ish,” 911 operators transferred Ms.
Perkins’ call to her so that she could give Ms. Perkins instructions on how to perform CPR.
She said that Ms. Perkins relayed the instructions to the Defendant. Ms. Smith recalled that
she asked Ms. Perkins when the last time was that she saw the victim breathing and that Ms.
Perkins “said that she had slept through the night, and it was about 10 o’clock the night
before.” Ms. Smith testified that Ms. Perkins sounded panicked and worried. Ms. Smith said
that the paramedics brought the victim to the hospital and that the Defendant signed the
consent forms for treatment, and then left.

       Kimberly Boles testified that, in August 2006, she lived in the same apartment
building as the Defendant and Ms. Perkins. She recalled that, around 9:00 p.m. on August
17, 2006, when the Defendant and Ms. Perkins arrived home with the victim, she met them
outside and held the victim. She then went up to their apartment for a little while, leaving
at approximately 9:30 p.m. Ms. Boles said that she did not observe any bruising on the
victim’s scalp or forehead when she saw him that night.

       She stated that, the next morning, she saw a fire truck at the apartment complex and
went outside to see what was happening. Ms. Boles testified that Ms. Perkins told her that
she called an ambulance because when she woke up, the victim was not breathing. Ms. Boles
said that Ms. Perkins “was very upset,” but that the Defendant “seemed to be okay.” She
recalled that Ms. Perkins later called her from the hospital and described, “She was very
upset, and she said the baby didn’t make it and she wished that she was dead. She wished
somebody would shoot her.”



                                              -5-
       A transcript of the previous testimony of Raymond Stinnett, a paramedic who worked
for Rhea Medical Services, was read to the jury. Mr. Stinnett said that, on August 18, 2006,
he responded to a call for an infant who was not breathing. He stated that his records
indicated that he arrived at the scene at 11:40 a.m. He said that the police and fire
department were already on the scene and that, when he went into the apartment, he observed
a male performing CPR on the victim. Mr. Stinnett testified that he did not see the man’s
face and, thus, could not say if it was the Defendant.

        Mr. Stinnett stated that the victim was “very pale,” and had no heartbeat or any other
signs of life. He recalled that he noticed bruising on the victim’s head and forehead. He said
that he saw blood on the bottom of the victim’s left foot and by his mouth. Mr. Stinnett
testified that, when he intubated the victim, he found that the victim had blood in his oral
pharynx, which is the upper part of his airway. He testified that he asked when the last time
the victim was seen alive and “was informed that the last time the infant was seen alive was
when it was put to bed the night before.”

       Dr. Amy McMaster testified that, on August 19, 2006, she performed an autopsy on
the victim. She said that the victim had multiple blunt force injuries to his head, neck, and
torso. Later, she elaborated that “the vast majority” of the victim’s scalp was covered with
bruising. Dr. McMaster also described the victim’s internal injuries as follows:

              Matthew also had extensive injuries on the inside of his body. He had
       bruising extensively beneath his scalp and extending on to the back portion of
       his neck. He had bleeding and swelling of the brain. He also had bleeding
       around different parts of his spinal cord. He had multiple rib fractures both in
       the front of the chest and in the back of the chest. He had bleeding in his
       abdominal tissue and of the diaphra[g]m, and your diaphra[g]m is your
       breathing muscle that sits in the lower portion of the chest or upper abdomen.
       He had bleeding around that. He had bleeding around one of the organs called
       the adrenal gland, which is a gland that sits above the kidney, so he had
       multiple areas of bleeding and injury and rib fractures.

Dr. McMaster also stated that the victim had bleeding at the back of his eyes. She described
his injuries as “extensive and severe” and equated them with the type of injuries received in
a fatal car wreck or by a fall from a second-or-third story window. When asked to compare
the victim’s injuries with other cases of child abuse she has seen, Dr. McMaster said, “On
a spectrum of children that I’ve seen that have been abused, this would certainly be on the
worst end of the spectrum of injuries that I’ve seen in my experience.”




                                             -6-
        She stated that she determined the victim’s cause of death was multiple blunt force
trauma injuries and that the manner of death was homicide. Dr. McMaster said that she
determined that the victim was “[a]ssaulted by another person or persons.” She testified that
the injuries that the victim received were not accidental, nor could they have been caused by
the victim himself. She stated that the victim could not have sustained these type of injuries
by falling off of a couch or by being dropped by someone who was holding him. When
asked if the victim could have sustained the injuries by someone grabbing his legs and
ramming his head into a table, she answered, “That could explain some of the injuries, yes.”
She also said that the rib fractures could have been sustained if someone squeezed the victim
as hard as they could. Dr. McMaster stated that some of the trauma to the victim’s head also
could have been caused by swinging him and hitting his head on a hard object. She testified
that the injuries that the victim sustained were not consistent with shaken baby syndrome.
She recalled that, aside from the injuries the victim sustained, she did not find any congenital
abnormalities and that the victim “appeared to be healthy.”

       Regarding how long the victim survived after the injuries were inflicted, Dr.
McMaster said that it was difficult to estimate. She stated that the victim “live[d] long
enough to have some brain swelling. That is not immediate. Sometimes that happens over
a period of minutes to hours.” She later stated, “[T]he type of head injury that Matthew had,
I would expect the child to be immediately symptomatic and death to possibly follow within
a few minutes to up to a couple of hours later.” She testified that the victim would have
experienced pain with his injuries.

        Dr. James Nelson, a pediatrician, testified that he examined the victim on August 14,
2006, when the Defendant and Ms. Perkins brought him in for a “well-baby check.” He said
that the victim appeared to be healthy and that he did not observe any bruising on the victim.

       Special Agent Mahonen testified that he responded to the Rhea County Medical
Center while the victim’s body was still there. He said that he photographed the victim’s
body and that he then proceeded to the residence of the Defendant and Ms. Perkins. He
recalled that the Defendant then voluntarily drove to the police station, where he
subsequently gave a statement at approximately 3:15 p.m.

        The jury heard an audio recording of the Defendant’s August 18, 2006 interview. In
the interview, the Defendant said that the victim was born six-weeks premature on July 29,
2006, and that the victim was released from the hospital on August 12, 2006. The Defendant
explained that they stayed at his mother’s house until August 17, 2006, when he and Ms.
Perkins brought the victim to their apartment.




                                              -7-
       That night, the Defendant said that both he and his wife went to sleep around 9:00
or 10:00 p.m. and that she slept in the bedroom, while he slept on the couch in the living
room. He said that the victim was in the bassinet in the bedroom. He said that his wife fed
the baby during the night and that he did not wake up at all during the night. The Defendant
claimed that, when he checked on the victim around 9:00 a.m., he was fine. He also said that
he woke his wife up at that time, but that “[s]he laid back down after we checked on him.”
The Defendant stated that, around 10:30 or 11:00 a.m., his wife noticed that the victim was
not breathing and she “hollered” for him. The Defendant denied doing anything to cause the
victim’s injuries.

       Special Agent Mahonen testified that, after the interview, he searched the Defendant’s
apartment with the Defendant’s permission. He said that he found an empty Percocet
prescription pill bottle on the floor in the bedroom. Special Agent Mahonen testified that
the label indicated that it was the Defendant’s prescription. He later admitted that he did not
ask either the Defendant or Ms. Perkins to submit to a drug test.

       Special Agent Mahonen also said that he interviewed the Defendant again on August
24, 2006. A transcript of the interview was read to the jury. At first, the Defendant
maintained that he and his wife went to sleep around 9:00 or 10:00 p.m. on August 17, 2006.
Then, the Defendant said that he stayed up until about 2:30 a.m. He said that he heard his
wife feeding the victim in the bedroom at around 1:30 a.m. He also said that, before he went
to sleep at 2:30 a.m., he looked into the bedroom and saw that his wife and the victim were
“alright.” When asked who hurt his son if he did not, the Defendant responded, “Like I said
I don’t have a clue who hurt my son. I don’t know if it was my wife or who it was. It sure
wasn’t me that hurt my son.”

       The Defendant testified in his own defense. He said that he was “very happy” when
his wife informed him that she was pregnant. He recalled that he never missed any of the
parenting classes at the hospital. The Defendant stated that, when he, Ms. Perkins, and the
victim stayed at his mother’s house from August 12-17, 2006, both he and his wife cared for
the victim, although he admitted that he did most of it.

       The Defendant testified that he was diagnosed with multiple sclerosis in 2003 and that
he was prescribed Percocet for his illness. However, he said that he did not take any Percocet
the night of August 17, 2006, that he kept all of his pill bottles in a locked box, and that he
did not take out the pill bottle found in the bedroom.

      The Defendant testified that he gave the victim a bath at his mother’s house on the
evening of August 17, 2006. He said that, when he, his wife, and the victim got to their
apartment, his wife washed the victim again with a damp cloth. He recalled that she then fed

                                              -8-
the victim and lay him in his bassinet in the bedroom. The Defendant testified that Ms.
Perkins went to sleep in the bedroom, while he lay on the couch. He stated that, sometime
between 10:00 and 11:00 p.m., he started watching a movie but dozed in and out. He
testified that, around 1:00 or 2:00 a.m., he awoke and checked on his wife and son by
standing in the hallway and peering into the bedroom. The Defendant recalled that he did
not notice anything out of the ordinary. He said that he did not hear his wife or the victim
during the night.

       The Defendant said that he then went to sleep on the couch and did not wake up until
Ms. Perkins “came in screaming” that the victim was not breathing around 10:30 or 11:00
a.m. The Defendant stated, “I went in there and got him up out of the bassinet and checked
and he wasn’t breathing, so I had her call 911.” The Defendant said that his wife relayed him
the CPR instructions she received from the 911 operator and that he performed CPR on the
victim. The Defendant recalled that he was “hurting badly” when the doctor at the hospital
informed him that the victim died. He said that he and his wife both cried. He denied
harming the victim in any way. The Defendant denied lifting up the victim’s shirt at his
funeral. He further said that his wife “seemed fine” during the funeral.

        On cross-examination, the Defendant acknowledged that, after Ms. Boles left their
apartment around 9:30 p.m. on August 17, 2006, he and his wife were alone in the apartment
with the victim until Officer Jackson arrived the next morning in response to their 911 call.
 He admitted that no one else had the opportunity to harm the victim that night besides him
and his wife. The Defendant also acknowledged that the victim was not bruised or injured
at the time Ms. Boles left their apartment.

       When confronted with Ms. Perkins’ testimony that the Defendant accused her of
carrying another man’s baby when she told him she was pregnant, the Defendant did not deny
making the comment and said that it was made “jokingly.” The Defendant also testified that
his wife was aware that he had a child from a previous marriage.

       The Defendant said that he was providing most of the victim’s care. He stated that
he attended all of the classes given at the hospital about caring for a baby, but that his wife
missed one or two because she was still sore from the C-section.

      The Defendant acknowledged that there was an inconsistency between one of his
statements to Special Agent Mahonen and his testimony at the trial. He admitted that he told
Special Agent Mahonen that he woke up around 9:00 a.m. and checked on the victim.

      Gracie Thomas testified that she lived next to the Defendant’s parents in Sale Creek
and had known the family for over forty years. She said that she observed that the Defendant

                                              -9-
provided most of the victim’s care. Ms. Thomas testified that she saw Ms. Perkins hold the
victim and that “she just carried [the victim] up in her arm and left its head hang over.” She
also said that Ms. Perkins told her that she got up and fed the victim one time the night that
he died. Ms. Thomas said that she asked Ms. Perkins whether the Defendant hurt the victim
and that Ms. Perkins said he did not.

        Kenneth Poe, the Defendant’s brother, testified that Ms. Perkins told him that “she
woke up a couple of hours during the night to feed [the victim], and it was a pretty good
while before she fed him again.” On cross-examination, Kenneth Poe said that both the
Defendant and Ms. Perkins were loving parents to the victim. He agreed that Ms. Perkins
had a “pretty significant disability” and that it was difficult for her to walk and talk. He also
agreed that she was not well-coordinated or real strong and that she would have had a hard
time picking up the victim by his feet and throwing him across the room. However, on re-
direct, Kenneth Poe said that it would not surprise him that Ms. Perkins walked ten miles.

       Elizabeth Blackstock, the Defendant’s mother, testified that the Defendant, Ms.
Perkins, and the victim stayed at her house for several days after the victim was released
from the hospital. She said that the Defendant was the victim’s primary caregiver and that
“[h]e bathed the baby all the time, and fed the baby most of the time.” She testified that she
went to the hospital after Ms. Perkins notified her that the victim was being taken there, and
she said that the Defendant “was very sad and tore up” and that he was crying.

        Bobby Poe, the Defendant’s father, testified that on August 16, 2006, he witnessed
Ms. Perkins grab the victim by the left arm and pull him out of the swinging chair he was
sitting in. He also said that she then “got him and throwed him over under her arm.” He said
that the victim’s head shook as Ms. Perkins moved, so he intervened and offered to watch
the victim while Ms. Perkins rested. He said she replied, “I wished you would.” Bobby Poe
also testified that he observed the Defendant crying at the hospital on August 18, 2006.

        The proof at the Defendant’s trial closed on the afternoon of July 22, 2009. The next
morning, before jury instructions and closing arguments, the trial court received notification
from a court officer that, during dinner the night before,2 she overheard one of the jurors
making a comment about the trial to another juror. The trial court held a hearing regarding
the issue.

       The court officer, Brenda Sturgil, testified that she heard one of the jurors comment
that “[s]he hadn’t made her mind up. She didn’t know what she was going to do.” Ms.
Sturgil also said that the juror expressed concern about the cameras in the courtroom and

       2
           The jurors were sequestered.

                                              -10-
“was worried just about being identified and someone coming after her.” Ms. Sturgil said
that only she and the other juror could have heard the comment because the restaurant was
loud and because most of the other jurors had gone outside to smoke. Ms. Sturgil also said
that the other juror did not say anything in response to the comment.

        The trial court stated that it was going to bring in the juror who made the comment
and question her. However, defense counsel responded, “I would object to individually
inquiring of a juror about that. I believe that it was improper. It may have influenced
another juror, and move for a mistrial.” When the State proposed making the two jurors
involved in the conversation the alternate jurors, defense counsel said that he thought the
only remedy was to declare “a mistrial and start over.” The trial court agreed with the State’s
suggestion and said that the remaining twelve jurors would deliberate. The trial court
brought the two jurors into the courtroom and told them that they “have been selected not to
deliberate in this matter.” The two jurors were then taken into a separate room, away from
the remaining jurors. Additionally, when the other twelve jurors returned to the courtroom
for jury instructions, the trial court assured them that the reporters were not taking pictures
of the jury members.

       On July 23, 2009, the jury convicted the Defendant of first degree felony murder and
aggravated child abuse, and they imposed a $50,000 fine for the latter offense. The trial
court conducted the Defendant’s sentencing hearing on September 4, 2009. On September
17, 2009, the Defendant was sentenced to life in prison for his first degree felony murder
conviction and to twenty-five years as a violent offender for his aggravated child abuse
conviction. The trial court ordered that his sentences run consecutively. The Defendant now
appeals.

                                            Analysis
I. Motion for Judgment of Acquittal
       The Defendant contends that the trial court erred when it denied his motion for
judgment of acquittal, which was made at the conclusion of the State’s proof and renewed
at the close of all proof. He argues that the State presented no evidence that he was the
perpetrator of the crime and that the evidence presented implicated him no more than it did
Ms. Perkins.

       On appellate review of a denial of a motion for judgment of acquittal, we apply the
same standard as a question of the sufficiency of the convicting evidence. See State v. Ball,
973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). Tennessee Rule of Appellate Procedure
13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact of
guilt beyond a reasonable doubt.” A convicted criminal defendant who challenges the

                                              -11-
sufficiency of the evidence on appeal bears the burden of demonstrating why the evidence
is insufficient to support the verdict, because a verdict of guilt destroys the presumption of
innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237
(Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s
challenge to the sufficiency of the evidence if, after considering the evidence in a light most
favorable to the prosecution, we determine that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); 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 which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        Aggravated child abuse is committed when a person “commits the offense of child
abuse, as defined in § 39-15-401(a) . . . and . . . [t]he act of abuse . . . results in serious bodily
injury to the child.” Tenn. Code Ann. § 39-15-402(a)(1) (2006). Child abuse occurs when
a person “knowingly, other than by accidental means, treats a child under eighteen (18) years
of age in such a manner as to inflict injury . . . .” Tenn. Code Ann. § 39-15-401(a) (2006).
First degree felony murder includes “[a] killing of another committed in the perpetration of
or attempt to perpetrate any . . . aggravated child abuse.” Tenn. Code Ann. § 39-13-302(a)(2)
(2006). “No culpable mental state is required for conviction . . . except the intent to commit
the enumerated offense[].” Tenn. Code Ann. § 39-13-202(b) (2006).

       Dr. McMaster testified that the victim sustained multiple blunt force injuries to his
head, neck, and torso. She said that the victim had bleeding and swelling of his brain, as well
as bleeding around his spinal cord, abdominal tissue, diaphragm, adrenal gland, and at the
back of his eyes. Dr. McMaster also reported that the victim had sustained multiple rib
fractures. She said that his injuries were “extensive and severe” and that it was one of the
worst cases of child abuse she had seen in her career. She testified that the injuries the victim
sustained were comparable with those received in a fatal car wreck or a fall from a second-
or third-story window. Dr. McMaster determined that the victim’s cause of death was
multiple blunt force trauma injuries and that the manner of death was homicide. She also

                                                -12-
said that the victim was “[a]ssaulted by another person or persons” and that his injuries were
not accidental or self-inflicted.

        The proof demonstrated that only the Defendant and Ms. Perkins were with the victim
between 9:30 p.m. on August 17, 2006, and 11:40 a.m. on August 18, 2006, the time period
during which the victim sustained his injuries. In fact, even the Defendant conceded that no
one else had the opportunity to harm the victim besides him and his wife. Ms. Perkins also
testified that, when she went to bed on August 17, 2006, the victim and the Defendant were
in the living room watching television. She recalled that the Defendant said “[h]e wanted
to spend some time with his son.” She said that she took Percocet with her epilepsy
medication, that the combination made her drowsy, and that she slept through the night.
Although the jury heard of Ms. Perkins’ many prior inconsistent statements, she testified that
she lied because she was afraid for her life and that the Defendant threatened to kill her.

       The Defendant testified that he suffered from multiple sclerosis, but he also testified
that he provided most of the victim’s care. Ms. Perkins said that she had undergone an
emergency C-section on July 29, 2006, and was still sore from the operation at the time of
the victim’s death. Additionally, it was revealed that Ms. Perkins had a “pretty significant
disability,” and even the Defendant’s brother testified that it was difficult for Ms. Perkins to
walk and talk. He also agreed that Ms. Perkins was not well-coordinated or very strong and
would have a hard time picking the victim up by his feet and throwing him across the room.

       Moreover, the jury heard much circumstantial evidence about the demeanor of both
the Defendant and Ms. Perkins. Officer Jackson described the Defendant’s demeanor at the
scene as “calm” and said that he never saw the Defendant cry or lose his composure. He also
noted that the Defendant never asked him which hospital the paramedics were taking his son
to. However, he testified that Ms. Perkins “was pretty hysterical” and that she did ask him
where paramedics were taking her son. Ms. Boles also testified that, at the time the first-
responders were at the scene, Ms. Perkins “was very upset,” but that the Defendant “seemed
to be okay.” Ms. Smith testified that Ms. Perkins sounded panicked and worried when she
called 911 for help. Ms. Perkins testified that the Defendant “acted like he was calm” at the
hospital when they were informed that their son had passed away.

       After our review of the evidence in the light most favorable to the State, we conclude
that sufficient evidence was presented for any rational trier of fact to find beyond a
reasonable doubt that the Defendant committed the offenses of first degree felony murder
and aggravated child abuse. The Defendant is not entitled to relief on this issue.

II. Jury Issues



                                              -13-
        The Defendant contends that the trial court erred when it failed to grant a mistrial after
it was discovered that one juror had made comments about the trial to another juror.
Additionally, he asserts that the trial court erred by not inquiring whether the other jurors
heard the comment and by failing to disable or remove the televisions and radios from the
jurors’ motel rooms.

        A. Mistrial
        Initially, we note that “[a] mistrial is usually appropriate in a criminal case only where
there is a ‘manifest necessity.’” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.
1996) (quoting Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)). “The
purpose for declaring a mistrial is to correct damage done to the judicial process when some
event has occurred which precludes an impartial verdict.” Id. An abstract formula should
not be applied mechanically in determining whether a mistrial was necessary, and all relevant
circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319, 322 (Tenn.
1993). Whether a mistrial should be granted is a determination left to the sound discretion
of the trial court. State v. Reid, 164 S.W.3d 286, 342 (Tenn. 2005) (citing State v. Smith,
871 S.W.2d 667, 672 (Tenn. 1994)). The trial court’s decision should not be overturned
absent an abuse of discretion. Id. Additionally, the party arguing that a mistrial should have
been granted bears the burden of establishing its necessity. Id. (citing Williams, 929 S.W.2d
at 388).

      After the court officer informed the trial court what she overheard one juror say to
another at dinner the night before, the trial court said that it was going to bring in the juror
who made the comments and question her. The following exchange subsequently occurred:

               DEFENSE COUNSEL: For the record, I guess I—personally, I don’t
       really care, but what we’re doing is we’re focusing on an issue that should this
       juror become, or stay as part of the 12 that decide the case, we’re adding
       significance to the statement. I would object to individually inquiring of a
       juror about that. I believe it was improper. It may have influenced another
       juror, and move for a mistrial.

              TRIAL COURT: Well, I have to be given an opportunity, counsel, to
       cure the situation. We can’t do it in a vacuum.

               DEFENSE COUNSEL: I understand.

               TRIAL COURT: In other words, we have the testimony of the driver
       and—



                                               -14-
       PROSECUTOR: Your Honor, I would like that on the record what
defense counsel is asking, basically, because we have the option of using those
two as the alternates and still having 12 folks, so if he’s saying—it wouldn’t
be grounds for a mistrial if those two were excluded as the alternates, we’re
fine. And if that’s what he’s asking, that’s what we can do. I want defense
counsel to say what his remedy is on the record before we question anybody.

       TRIAL COURT: What do you say, [defense counsel]? That is an
option. Simply the proof that I have before me is that the conversation was
overheard between those two jurors, and one of the options would be simply
to remove those two jurors and use the 12 remaining, so you tell me what you
think the proper remedy should be. Go ahead and tell me what you think the
remedy should be. Are you satisfied with me removing those two jurors, or do
you wish some other proposed remedy?

      DEFENSE COUNSEL: Your Honor, I don’t think that those two
choices are the only remedy.

       TRIAL COURT: Well, tell me what you think the remedy or remedies
are.

       DEFENSE COUNSEL: Just a mistrial and start over.

        TRIAL COURT: Well, I’m not going to grant you a mistrial at this
point in time, so I’m asking you if you have any suggestion past just declaring
a mistrial, how to handle what’s before me.

       DEFENSE COUNSEL: No, sir, just a mistrial. You have to understand
I’m just building a record. I don’t have a solution.

       TRIAL COURT: Well, I understand what you’re doing.

        DEFENSE COUNSEL: We’re in a dilemma at this point. If we bring
her in, we’re going to add significance to what has happened, and if we don’t
bring her in, we’re worrying about what could take place. The only thing I
know is just move for a mistrial.

       PROSECUTOR: If counsel is not going to agree to a remedy just so he
can protect the record, Your Honor, then I think your only option, because he’s
going to object, regardless of what you do he’s going to object.

                                     -15-
              TRIAL COURT: What’s the state’s proposal?

              PROSECUTOR: Your Honor, we have no issue to proceed with the 12
       that we have, and let’s don’t question anybody. If he’s going to object to that
       he can do that.

              TRIAL COURT: Counsel, that’s the remedy. I’m going to call those
       two jurors in and I’m going to excuse those two jurors and we’ll proceed with
       the other 12.

The trial court then brought in the two jurors and said, “Ladies, the two of you have been
selected not to deliberate in this matter, so we’re going to keep you separate.”

        After our review, we conclude that the trial court did not err when it failed to declare
a mistrial. The trial court had only the testimony of Ms. Sturgil to consider when it ruled on
the Defendant’s request for a mistrial, because the Defendant objected to questioning the
juror who made the comment. Ms. Sturgil testified that, during dinner the night before, she
sat at a booth in a restaurant with two female jurors. She recalled that one juror commented
that “[s]he hadn’t made her mind up” and, because there were cameras in the courtroom, she
was worried about being identified and that someone could come after her. Ms. Sturgil said
that only she and the other juror sitting in their booth could have heard the comments because
the restaurant was loud, the juror who made the comment was soft-spoken, and most of the
other jurors had gone outside to smoke. After hearing this, the trial court told the two jurors
that they had been chosen not to deliberate on the case and separated them from the
remaining twelve jurors before the closing arguments and jury instructions were given. In
essence, the two jurors were treated as excused alternate jurors. We conclude that, given
these circumstances, there was no “manifest necessity” for the trial court to declare a mistrial.
The Defendant is not entitled to relief on this issue.

       B. Questioning the Remaining Jurors
       In his brief, the Defendant argues as follows:

       [The Defendant] submits that due process in this case required that the trial
       court hold a hearing in some fashion to determine the existence of prejudice
       of the other twelve jurors. Once, the court determined that there was sufficient
       cause to dismiss two jurors for the reasons which occurred in this trial the
       burden shifted to the [S]tate to substantiate the conduct or establish its
       harmless nature. The only way to establish its harmless nature relative to
       remaining jurors was to at least make brief inquiry of the remaining panel.



                                              -16-
As authority for his argument, the Defendant quotes State v. Parchman, 973 S.W.2d 607, 612
(Tenn. Crim. App. 1997), in which this Court stated, “If it is shown that one or more jurors
has been exposed to extraneous prejudicial information or improper influence, there arises
a rebuttable presumption of prejudice, and the burden then shifts to the prosecution to explain
the conduct or to demonstrate the harmlessness of it.” However, the Defendant’s argument
that the State carries the burden of showing the juror’s conduct was harmless is misplaced.

        The record does not indicate that it was “shown that one or more jurors ha[d] been
exposed to extraneous prejudicial information or improper influence.” See id. “‘Extraneous
information’ is information from a source outside the jury.” Carruthers v. State, 145 S.W.3d
85, 92 (Tenn. Crim. App. 2003). In Caldararo v. Vanderbilt University, the Court of Appeals
summarized external and internal influences as follows:

       External influences that could warrant a new trial if found to be prejudicial
       include: (1) exposure to news items about the trial, (2) consideration of facts
       not admitted in evidence, and (3) communications with non-jurors about the
       case. Internal influences that are not grounds to overturn a verdict include: (1)
       discussions among jurors, (2) intimidation or harassment of one juror by
       another, (3) a juror’s personal experiences not directly related to the litigation,
       and (4) a juror’s subjective thoughts, fears, and emotions.

794 S.W.2d 738, 742 (Tenn. Ct. App. 1980) (internal citations omitted). Moreover, in State
v. Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984), this Court noted that the alleged
discussions about the case amongst the jurors prior to the close of the proof was not
“extraneous prejudicial influence” or “outside influence.”

        We reject the Defendant’s argument that the trial court should have sua sponte
questioned the other jurors about the existence of prejudice. First, the Defendant did not
request that the other jurors be questioned. In fact, he objected to questioning the juror who
made the comments because he did not want “to add significance” to what happened.
Second, given Ms. Sturgil’s testimony, there was no indication that any of the remaining
jurors heard the comments at issue and were, therefore, prejudiced by it. Additionally, as the
juror’s comments did not amount to “extraneous prejudicial information or improper
influence,” we reject the Defendant’s assertion that the burden shifted to the State to show
that the comments were harmless. The Defendant is not entitled to relief on this issue.

       C. Televisions and Radios in Jurors’ Motel Rooms
       The trial court repeatedly instructed the jurors that they were not allowed to watch the
local Chattanooga television stations at all and that they should turn off their televisions by
9:00 p.m. However, the Defendant argues that the trial court erred “when it failed to insure

                                              -17-
that the jury would not be subjected to news media coverage by disabling or removing
television and radio media in the motel rooms in which the jury stayed while being
sequestered.” There is no indication in the record that the Defendant requested that the
televisions and radios be disabled or removed from the jurors’ motel rooms. Thus, this issue
is waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”).

III. Sentencing Issues
       The Defendant asserts that the trial court incorrectly applied two enhancement factors
and failed to apply one applicable mitigating factor when it sentenced him to twenty-five
years for his aggravated child abuse conviction. He also contends that the consecutive
sentences the trial court imposed are excessive and that he should receive jail credit for the
time he served after his probation was revoked on a previous conviction.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

                                              -18-
        A. Enhancement and Mitigating Factors
        The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

       The trial court found that the following enhancement factors applied to the Defendant:
(1) The Defendant has a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range; (4) A victim of the offense

                                              -19-
was particularly vulnerable because of age or physical or mental disability; (5) The
Defendant treated, or allowed a victim to be treated, with exceptional cruelty during the
commission of the offense; (8) The Defendant, before trial or sentencing, failed to comply
with the conditions of a sentence involving release into the community; and (14) The
Defendant abused a position of public or private trust. See Tenn. Code Ann. § 40-35-114(1),
(4), (5), (8), (14). The trial court did not apply any mitigating factors. Regarding the
enhancement factors that the trial court found, the Defendant only contests the application
of factors (1) and (5).

        The trial court considered two prior convictions when it applied enhancement factor
(1) to the Defendant. In 2002, following a jury trial, the Defendant was convicted of child
abuse, a Class D felony, against his other son, who was twelve days old at the time of the
offense. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL
1607002, at *1 (Tenn. Crim. App., Knoxville, July 19, 2004). The Defendant was also
convicted of driving under the influence in 1995. Thus, because he had a previous history
of criminal convictions, we cannot conclude that the trial court erred by finding that
enhancement factor (1) applied to the Defendant.

        The trial court also found that the Defendant treated the victim with exceptional
cruelty during the commission of the offense. In its written order, the trial court noted, “The
proof at trial in the form of expert testimony, lay testimony, and photographs clearly
established that 20-day-old Matthew Poe was brutally beaten, yet survived for a period of
time after some of the injuries were inflicted. Without question, the [D]efendant treated
Matthew with exceptional cruelty.” However, the Defendant argues that the trial court erred
in finding this factor applied because “[t]here was no concrete proof that the victim survived
for a period of time after the injuries were inflicted.” We disagree.

        Dr. McMaster said that it was difficult to estimate how long the victim survived after
the injuries were inflicted, but she said that the victim “live[d] long enough to have some
brain swelling. That is not immediate. Sometimes that happens over a period of minutes to
hours.” She later stated, “[T]he type of head injury that Matthew had, I would expect the
child to be immediately symptomatic and death to possibly follow within a few minutes to
up to a couple of hours later.” She testified that the victim would have experienced pain with
his injuries. Dr. McMaster also testified that she had performed at least 2,000 autopsies and
that the injuries inflicted on the victim were among the worst she had seen in her career.
Thus, after reviewing the record, we cannot conclude that the trial court erred when it found
that the Defendant treated the victim with exceptional cruelty during the commission of the
offense.




                                             -20-
        Finally, the Defendant claims he has multiple sclerosis and that the trial court should
have considered that and applied mitigating factor (13). See Tenn. Code Ann. § 40-35-
113(13) (“Any other factor consistent with the purposes of this chapter.”). However, we
cannot conclude that the trial court erred by not considering the Defendant’s uncorroborated
claims about his medical condition as a mitigating factor. The presentence report contains
a multitude of the Defendant’s medical records and none of them indicate that the Defendant
has been diagnosed with multiple sclerosis, as he asserts. In fact, the trial court found that
the Defendant had been “untruthful about his . . . medical condition.” After our review of
the record, we conclude that the trial court did not err when it failed to apply a mitigating
factor based on the Defendant’s assertions about his medical condition. Thus, the Defendant
is not entitled to relief on this issue.

       B. Consecutive Sentencing
       The trial court ordered that the Defendant’s twenty-five-year sentence for aggravated
child abuse be serve consecutively to his life sentence for first degree felony murder. The
Defendant now appeals.

        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;
       (2) The defendant is an offender whose record of criminal activity is extensive;
       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;
       (4) The defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and no hesitation about committing a crime in which
       the risk to human life is high;
       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims;
       (6) The defendant is sentenced for an offense committed while on probation;
       or

                                               -21-
        (7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing. We note that the
trial court found that factors (4) and (6) applied, although the Defendant only challenges the
application of factor (4).

       Regarding the imposition of consecutive sentences because the defendant is a
“dangerous offender,” our supreme court has held, “The proof must also establish that the
terms imposed are reasonably related to the severity of the offenses committed and are
necessary in order to protect the public from further criminal acts by the offender.” State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The Defendant argues that “[t]he trial court
did not find that . . . the terms imposed are reasonably related to the severity of the offenses
committed [and] therefore the sentences should have been run concurrently.” We cannot
agree.

       In its order imposing consecutive sentences, the trial court stated as follows:

               The court finds the following factors from [Tennessee Code Annotated
       section] 40-35-115 and State v. Wilkerson, 905 S.W.2d 933, weighing in favor
       of consecutive sentencing:
               (4) The court finds the [D]efendant is a dangerous offender whose
       behavior indicates little or no regard for human life, and no hesitation
       about committing a crime in which the risk to human life is high. While
       the record is devoid of particulars, it does establish the [D]efendant abused his
       first son, Taylor Poe. The proof at trial revealed the [D]efendant brutally
       murdered his second son, Matthew, on the first night that he and the child’s
       mother resided alone in their apartment with the child. Such behavior
       establishes the [D]efendant is a dangerous offender who has little or no regard
       for human life and no hesitation about committing a crime in which the risk to
       human life is high. The circumstances surrounding the commission of this
       offense are aggravated due to the extreme youth of the child, the cruel
       treatment, and the position of trust which the [D]efendant occupied. The
       [D]efendant has only been sporadically employed, and has been untruthful
       about his employment and medical condition. Society should be protected
       from an individual who is unwilling to lead a productive life and whose
       despicable crimes against the most defenseless of all human beings show him
       to be anti-social, and one who should be confined for an extended period of
       time.




                                              -22-
Although the trial court did not explicitly state that the sentence imposed was reasonably
related to the severity of the offenses committed, when we examine the totality of the trial
court’s statements we are satisfied that it made the requisite findings. Not only did it cite to
State v. Wilkerson, 905 S.W.2d 933, the trial court commented that the “[D]efendant brutally
murdered” the victim and that the circumstances of the offense were “aggravated due to the
extreme youth of the child, the cruel treatment, and the position of trust which the
[D]efendant occupied.” Thus, we reject the Defendant’s argument that the trial court did not
make the findings necessary to support the imposition of consecutive sentences. The
Defendant is not entitled to relief on this issue.

        C. Jail Credit
        The Defendant argues that the judgment forms the trial court entered did not reflect
the proper amount of jail credit. Our review of the record has allowed us to piece together
the following chronology of events. On October 4, 2006, the Defendant was arrested for the
charges underlying this appeal. His bond was set at $100,000 on October 6, 2006. On
October 12, 2006, the Defendant was released from the Rhea County Jail on bond. That
same day, a Hamilton County court ordered that a probationary capias be issued because the
Defendant violated the terms of his probation stemming from his 2002 child abuse
conviction. On October 13, 2006, approximately eight hours after he posted bond, the
Defendant was arrested for violating his probation. His Hamilton County probation was
revoked on November 6, 2006, and he was ordered to serve the remainder of his sentence in
the penitentiary. On November 9, 2006, the Defendant filed a Petition to Approve Surrender,
requesting “[t]hat he be allowed to surrender himself to the sheriff of Rhea County [and] that
his bond premium ($8,000.00) be returned so that he may hire private counsel.” On January
12, 2007, the trial court granted the Defendant’s request.3

        The trial court’s judgment form for the Defendant’s first degree felony murder
conviction reflects that the Defendant received jail credit from October 4, 2006 to October
12, 2006, and also from January 1, 2009 to September 17, 2009. In this appeal, the
Defendant argues that he should have received additional jail credit for the time he spent in
the penitentiary serving his Hamilton County sentence because he surrendered his bond for
the instant charges.

       Tennessee Code Annotated section 40-23-101 (c) provides as follows:


       3
          We note that the record is not clear when the Defendant finished serving his sentence from
Hamilton County. However, arguments during the sentencing hearing indicate that, after finishing his
sentence, he was mistakenly released from custody. The Defendant subsequently surrendered to Rhea
County officials on January 1, 2009.


                                               -23-
              The trial court shall, at the time the sentence is imposed and the
       defendant is committed to jail, the workhouse or the state penitentiary for
       imprisonment, render the judgment of the court so as to allow the defendant
       credit on the sentence for any period of time for which the defendant was
       committed and held in the city jail or juvenile court detention prior to waiver
       of juvenile court jurisdiction, or county jail or workhouse, pending
       arraignment and trial. The defendant shall also receive credit on the sentence
       for the time served in the jail, workhouse or penitentiary subsequent to any
       conviction arising out of the original offense for which the defendant was
       tried.

(emphasis added). In State v. Watkins, we noted that “[t]he purpose of the pretrial jail credit
statute is to treat those unable to make bail in much the same manner as those that are.” 972
S.W.2d 703, 705 (Tenn. Crim. App. 1998). However, a defendant is only entitled to pre-trial
jail credit “against a sentence if the reason for the incarceration arises from the offense for
which the sentence was imposed.” State v. Timothy S. Bradley, No. 01C01-9804-CC-00165,
1999 WL 155916, at *2 (Tenn. Crim. App., Nashville, Mar. 23, 1999) (“Appellant is not
entitled to pre-trial jail credit in this case because the reason for his confinement in the
Dickson County Jail arose from the Dickson County offenses and not the Humphreys County
offenses for which Appellant was sentenced in this case.”); see also State v. Earl D. Mills,
No. E2004-01218-CCA-R3-CD, 2005 WL 1551339, at *3 (Tenn. Crim. App., Knoxville,
July 5, 2005) (finding that a defendant convicted of vehicular homicide was not entitled to
jail credit for the time he served for an unrelated violation of probation); State v. Michael
Bikrev, No. M2001-01620-CCA-R3-CD, 2002 WL 170734, at *7 (Tenn. Crim. App.,
Nashville, Feb. 4, 2002) (holding that a defendant who was serving time for a violation of
probation was not entitled to jail credit toward his sentence for another offense); State v.
Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983) (rejecting the defendant’s
argument that he should receive jail credit and noting that the time he spent in jail “was not
time served arising out of or in relation to his robbery conviction”); Majeed v. State, 621
S.W.2d 153, 155 (Tenn. Crim. App. 1981) (“[W]e conclude that it cannot be legitimately
argued that the defendant’s jail time in Florida should be credited on his Tennessee escape
sentence. He was not “committed and held” in Florida regarding this escape charge, except
for the eleven (11) day interim between the disposition of the Florida charges and his return
to Tennessee, and he has been credited for that time.”); Trigg v. State, 523 S.W.2d 375, 376
(Tenn. Crim. App. 1975) (rejecting a defendant’s claim that he should receive jail credit on
his Tennessee sentence for his confinement in federal court and noting, “He was deprived
of his liberty for exactly the same reason while awaiting disposition of the Tennessee case
as he would have been if able to make bond on the latter charge. It is only when the time
spent in jail or prison is due to or, as the statute says, ‘arises out of’ the offense for which the
sentence against which the credit is claimed that such allowance becomes a matter of right.”).

                                               -24-
        While the Defendant was incarcerated for the Hamilton County violation of probation,
beginning October 13, 2006, he was not being “committed and held” in custody for the Rhea
County charges underlying this appeal. In fact, he had been released on bond for the instant
offenses when he was arrested for violating his Hamilton County probation. Because the
Hamilton County offenses, and not the instant offenses, were keeping him in jail, we
conclude that the trial court correctly awarded the Defendant jail credit for only the time he
served before and after the service of his Hamilton County sentence. The Defendant is not
entitled to relief on this issue.

IV. Indictment
        Finally, the Defendant argues that “the indictment simply recited the statute relative
to the charges and did not contain facts and circumstances which would constitute the crime,”
and, therefore, the trial court erred when it failed to dismiss the indictment. The pertinent
counts of the indictment provide as follows:

                                        COUNT II
              The Grand Jurors of Rhea County, Tennessee, duly impaneled and
       sworn upon their oath, present that:
              MICHAEL W. POE on the ____ day of August, 2006 in Rhea
       County, Tennessee, and before the finding of this indictment, did unlawfully
       and knowingly kill one Matthew Poe, during the perpetration of Aggravated
       Child Abuse, in violation of T.C.A. 39-13-302, all of which is against the
       peace and dignity of the State of Tennessee.

                                        COUNT III
               The Grand Jurors of Rhea County, Tennessee, duly impaneled and
       sworn upon their oath, present that:
               MICHAEL W. POE on the ____ day of August, 2006 in Rhea County,
       Tennessee, and before the finding of this indictment, did unlawfully and
       knowingly, and other than by accidental means, inflict serious bodily injury
       upon one Matthew Poe, a child under six (6) years of age, so as to adversely
       affect the health and welfare of said child, in violation of T.C.A. 39-15-402,
       all of which is against the peace and dignity of the State of Tennessee.

       An indictment meets constitutional requirements if it provides sufficient information:
(1) to enable the accused to know the accusation to which an answer is required; (2) to
furnish the court an adequate basis for the entry of a proper judgment; and (3) to protect the
accused from double jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In addition,
an “indictment must state the facts constituting the offense in ordinary and concise language,
without prolixity or repetition, in a manner so as to enable a person of common

                                             -25-
understanding to know what is intended.” Tenn. Code Ann. § 40-13-202. Indictments
patterned after the pertinent language of an applicable statute are ordinarily sufficient for
constitutional and statutory purposes. See State v. Hammonds, 30 S.W.3d 294, 302 (Tenn.
2000).

        As support for his argument that the indictment is deficient, the Defendant relies on
State v. Clark, 2 S.W.3d 233 (Tenn. Crim. App. 1998). Count one of the indictment in Clark,
stated as follows:

       [T]hat John Edward Clark on or about August 17, 1996, in Madison County,
       Tennessee, and before the finding of this indictment, did unlawfully and
       knowingly attempt to commit the criminal offense of Aggravated Robbery, in
       violation of T.C.A. § 39-12-101 and T.C.A. § 39-13-402, all of which is
       against the peace and dignity of the State of Tennessee.

Id. at 234-35. This Court found that count one of the indictment was void because it
“allege[d] a legal conclusion—that the defendant committed attempted aggravated
robbery—without alleging the facts and circumstances which constitute that crime.” Id. at
236. In State v. Hammonds, 30 S.W.3d 294, 303 n.8 (Tenn. 2000), when addressing a
similar argument to the one the Defendant raises, our supreme court discussed Clark and
stated as follows:

       Aggravated robbery is “robbery as defined in § 39-13-401: (1) Accomplished
       with a deadly weapon or by display of any article used or fashioned to lead the
       victim to reasonably believe it to be a deadly weapon; or (2) Where the victim
       suffers serious bodily injury.” See Tenn. Code Ann. § 39-13-402(a). Under
       this statute, aggravated robbery has two elements: (1) robbery as defined in §
       39-13-401 and (2)(a) use or display of a deadly weapon or use or (b) display
       of any article used or fashioned to lead the victim to reasonably believe it to
       be a deadly weapon or (c) serious bodily injury. The indictment in Clark did
       not allege the second element of the offense, deadly weapon or serious bodily
       injury.

       In the instant case, we reject the Defendant’s argument that the indictment was
insufficient. First degree felony murder includes “[a] killing of another committed in the
perpetration of or attempt to perpetrate any . . . aggravated child abuse.” Tenn. Code Ann.
§ 39-13-302(a)(2) (2006). Count two of the indictment named the Defendant, tracked the
language of the felony murder statute, made specific reference to the statute, stated the
underlying felony, provided the month and year of the offense, and identified the victim.



                                            -26-
        Aggravated child abuse is committed when a person “commits the offense of child
abuse, as defined in § 39-15-401(a) . . . and . . . [t]he act of abuse . . . results in serious bodily
injury to the child.” Tenn. Code Ann. § 39-15-402(a)(1) (2006). Child abuse occurs when
a person “knowingly, other than by accidental means, treats a child under eighteen (18) years
of age in such a manner as to inflict injury . . . .” Tenn. Code Ann. § 39-15-401(a) (2006).
Count three of the indictment named the Defendant, tracked the language of the aggravated
child abuse statute, made specific reference to the statute, provided the month and year of the
offense, identified the victim, and stated the victim’s age. Thus, we conclude that both
counts of the indictment meet constitutional and statutory requirements and that the trial
court did not err when it failed to dismiss the indictment. The Defendant is not entitled to
relief on this issue.

                                          Conclusion
         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.




                                                       _________________________________
                                                       DAVID H. WELLES, JUDGE




                                                -27-
