        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 27, 2012

           STATE OF TENNESSEE v. JEFFREY SCOTT GOLD

                 Appeal from the Criminal Court for Sullivan County
                         No. S57082   R. Jerry Beck, Judge


                No. E2012-00387-CCA-R3-CD - Filed August 15, 2013


A Sullivan County jury convicted the Defendant-Appellant, Jeffrey Scott Gold, of aggravated
child abuse and aggravated child neglect, Class A felonies, for which he received concurrent
terms of twenty-two-years’ imprisonment. On appeal, he argues that the trial court erred in
(1) granting the State’s motion to depose a prospective witness to preserve that witness’s
testimony for trial; (2) denying his motion for judgment of acquittal as to the aggravated
child neglect conviction; and (3) imposing an excessive sentence. Following a thorough
review, we reverse and vacate the aggravated child neglect conviction. In regard to the other
issues, the judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                      Affirmed in Part and Reversed in Part

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Stephen M. Wallace, District Public Defender; Andrew J. Gibbons, Assistant Public
Defender, Blountville, Tennessee, for the Defendant-Appellant, Jeffrey Scott Gold.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and William B. Harper, Assistant
District Attorney General, for the Appellee, State of Tennessee.




                                        OPINION
       On October 19, 2008, C.G.,1 Gold’s forty-three-day-old son and the victim in this
case, was taken to the hospital due to “unusual” irritability. Once at the hospital, medical
personnel observed bruises on the victim’s nose, mouth, chest, back, left leg, and groin area.
Further examination revealed that the victim’s injuries were the result of non-accidental
trauma. Gold later admitted that, while holding the victim in his arms, he tripped down
several stairs and fell on top of the victim with the full weight of his body. Gold insisted that
the injuries to the victim were accidental. On September 22, 2009, Gold was charged by
grand jury presentment with aggravated child abuse and aggravated child neglect of the
victim. The following proof was adduced at trial.

        Trial. Shannon Evans, the victim’s mother and Gold’s ex-girlfriend, testified that the
victim was born in September 2008. He was delivered vaginally without the use of forceps.
She said the victim was born with a hydrocele, which she described as a swollen area on the
left side of his scrotum. Prior to the victim’s birth, in August 2008, Evans moved to a home
that Gold purchased for them and became financially dependent upon Gold. After describing
their relationship at length, Evans said that she and the victim usually went to bed at 7:00
p.m., that the victim slept in a bassinet in the same bedroom, and that Gold “never [went] to
bed with [them].”

        Evans described the victim as a “perfectly healthy, happy child” and did not observe
the victim exhibiting any signs of pain or discomfort from October 1, 2008 through October
18, 2008. She denied having a car accident on the trip to visit her parents on October 18,
2008, and she said that she never let the victim out of her sight while with her parents. When
she changed the victim’s diaper during the trip, she did not observe any injuries and noticed
that the hydrocele had improved. During her visit with her family, she never saw anyone
injure the victim. After visiting with her family, Evans returned to Gold’s house on October
18, 2008, around 10:30 p.m.

        Evans testified that when they arrived home, Gold took the victim out of the car and
Evans and the victim went to bed shortly thereafter. Around 2:30 a.m., Evans awoke to feed
the victim and returned to sleep after Gold volunteered to feed and change the victim. Evans
said she awoke a second time around 7:00 a.m. because the victim was fussy and crying.
Gold was consoling the victim by patting him on his back, and Evans fell asleep. She woke
a third time between 10:30 a.m. and 11:00 a.m. because she heard the victim crying “like
never before.” She said that Gold was rocking the victim and that she asked him what had
happened. Gold never explained why the victim was crying and “made [her] feel like it was


       1
           This court refers to victims who are minors by their initials only.

                                                     -2-
just a . . . bellyache.” She saw some blood on the victim’s nose and asked Gold what had
happened. At that point, Gold “got very defensive” and told her “something about a mobile.”
Evans asked Gold if they should take the victim to the emergency room, and he refused,
stating, “[T]hat a dime of [the cost] wasn’t coming out of his pocket. That . . . he wasn’t
going to take him.” Evans explained that she “let it go” because she was scared and trusted
Gold.

        Around noon on October 19, 2008, Gold’s mother and stepfather, Frank and Judy
Kibler, arrived at Gold’s house. The victim was still crying, and they attempted to console
him. Evans testified that Gold’s parents initially believed the victim had a stomachache and
went to the store to purchase gas drops. Later that same day, Evans stood behind Gold as he
changed the victim’s diaper. Evans said she noticed that the victim’s scrotum was red and
appeared different from what she had previously observed. When she questioned Gold about
the victim’s groin area, he explained that “he probably put [the victim’s] diaper on too tight.”
A couple of hours later, Gold was in the guest bedroom changing the victim’s diaper when
Evans noticed a small bruise on the victim’s back. When she asked Gold about the bruise,
Gold became upset with her. He told Evans that he did not know what had happened and that
he “didn’t intentionally hurt [the victim] or anything like that.” Evans then pushed Gold, and
he pushed her back.

        Evans showed Gold’s mother the victim’s bruise later that evening. Gold’s mother
told Evans to take the victim to the emergency room. Evans said that Gold told her to “leave
his name out of it” and that “Social Services . . . will come . . . and . . . do something.” Evans
testified that Gold had exclusive care of the victim from the time she returned to his house
on October 18, 2008, to October 19, 2008. She said that she never hurt the victim and that
Gold never gave her an explanation of what happened to the victim. She acknowledged that
she gave several different statements to authorities and explained that she did so because she
“was very upset and devastated.” After taking the victim to the hospital, Evans and Gold lost
custody of the victim, and Evans moved out of Gold’s house. By agreement, the Kiblers
received legal guardianship of the victim, and Evans had visitation on the weekends. Evans
was not charged with a crime in connection with the injuries to the victim and was not
promised anything in exchange for her testimony at trial.

        On cross-examination, Evans acknowledged that Gold purchased a house and
remodeled it so she and the victim could live with him. She also acknowledged that Gold
and his family were at the hospital for the victim’s birth and that Gold was happy about the
birth of his son. She said that Gold never exhibited violent behavior toward her or the victim
and that she had no reason to distrust Gold with the victim. She also said that Gold helped
her with the victim on weekends and that it was not unusual for Gold to offer to feed the
victim so she could rest. Evans asserted that she added additional information to her
subsequent police statements because she remembered more details each time she provided

                                               -3-
a statement. She believed that the injuries to the victim were accidental because Gold was
incapable of intentionally hurting him.

       Evans said that the victim did not suffer brain damage, was not crippled or deformed,
and was a healthy, happy, active three-year-old child. She acknowledged that in October
2008, John Freeman of Department of Child Services (DCS) told her that she and Gold could
be charged with abuse. She also acknowledged that she told police that she may have caused
some of the injuries to the victim’s back on October 18, 2008, by changing the victim’s
diaper in her sister’s car where the seatbelt buckles could have bruised him.

       On redirect-examination, Evans testified that on either October 9, 2008, or October
10, 2008, she heard the victim crying while she was in a bedroom in Gold’s house and while
Gold was in the den with the victim. Gold told her the victim’s diaper had fallen off, and he
bent down to get it. He told her that as he bent down, the victim fell out of his arms and hit
a wooden table. Evans later observed makeup on the victim’s face to conceal this injury, and
she asked Gold about it. Evans said that Gold admitted that he put makeup on the victim’s
face because he did not want her to be upset with him because he had dropped the victim.

        Each of the victim’s family members who were present during the October 18, 2008
visit to his grandparent’s home the day before he was taken to the hospital testified at trial.
The victim’s maternal grandmother testified that the victim had no visible injuries when he
arrived at her home on October 18, 2008. She observed her daughter change the victim’s
diaper in the car and saw no evidence of injury to the victim. She testified that neither she
nor her daughter injured the victim. She also stated that the victim was not fussy or irritable
when he left her home. On cross-examination, she testified that she visited the victim about
once a week at Gold’s house and that the victim always appeared to be a healthy, happy
baby. She did not recall whether she had seen the victim the week before October 18, 2008.
The victim’s maternal grandfather testified, in large part, consistently with the testimony of
his wife and daughter. He denied injuring the victim and did not observe anyone else injure
him. The maternal aunt of the victim testified consistently with the other family members
present on October 18, 2008. She also denied injuring the victim and identified photographs
taken of him that day. On cross-examination, she said that she probably had seen the victim
only twice before October 18, 2008.

       Harold Lance DeBord, a physician assistant at Northeast Tennessee Emergency
Physicians, testified that he was working in the Holston Valley Hospital emergency room
when the victim arrived on October 19, 2008. He stated that his physician encounter notes
regarding the victim, which were admitted as an exhibit, indicated that the victim was
“brought in for crying, constipation, . . . as well as testicular swelling.” DeBord observed
bruising on the victim’s back, the side of his trunk, his groin area, and arm, all of which he
documented on the physician encounter diagram.

                                              -4-
         Sergeant Chris Tincher of the Kingsport Police Department identified nineteen
photographs taken of the victim on October 20, 2008, while the victim was at Holston Valley
Medical Center. Based on the photographs, Sergeant Tincher observed that the victim had
a “little, small red mark right . . . at the bridge of his nose”; three bruises on his back, which
were approximately one inch, an inch and a half, and three inches long; a bruise on his leg;
bruising on the right side of the groin area of the leg and a swollen scrotum sac; and “a
pumpknot,” or raised area, on the top of the child’s head.

       Teresa Brooks, a Child Protective Services (CPS) investigator for DCS, testified that
on October 20, 2008, she encountered Gold and Shannon Evans as they sat together in the
lobby area of the Kingsport Police Department. Brooks did not identify herself to Gold or
Evans and overheard a conversation between them. Brooks specifically heard Gold tell
Evans that if he was asked how the bruise on the genital area occurred, he was going to say
that he “wiped him too hard.” Brooks also heard Gold say, “if any inquiry was made into
any of the other bruises, he was going to say that he just plays with him too rough.” Brooks
said that Evans “just seemed to nod her head and agree.”

        Rachel Buckles, the victim’s CPS case manager, testified that she was also sitting in
the Kingsport Police Department lobby area on October 20, 2008. She also overheard a
conversation between Gold and Evans. Buckles testified she heard Gold say that “if they
asked about the bruising to [the victim’s] genitals, [he] would just say that he had wiped him
too hard. Or if they asked about the bruising on the rest of [the victim’s] body, they would
just say that Mr. Gold maybe had been playing with him too rough. And M[s]. Evans would
say, ‘Yes, you know, we’ll–okay, we’ll say that.’” Buckles testified that Gold “appeared to
be calm, cool, collected” when talking about their plans, but he “became agitated” when
talking about his previous interactions with CPS Investigator Casey Gibson.

        Over defense counsel’s objection, a video deposition of Dr. Amirah Daher was
entered as an exhibit at trial and played for the jury. Dr. Daher, an expert in the field of
pediatric intensive care, testified that she was a pediatric intensivist with Holston Medical
Group in Kingsport, Tennessee. She obtained the victim’s medical history from Dr. Fisher,
the physician who admitted the victim to the hospital from the emergency room. She said
that the victim “was brought into the emergency room with the chief complaint [that he was]
extremely fussy and irritable for the day . . . and [that] he was not acting [like] his usual self.”
She testified that the victim arrived with bruises on his nose, mouth, chest, back, groin area,
and left leg. She testified that the parents did not mention anything about the bruises;
however, the emergency room staff noticed the bruises. She said that neither she nor Dr.
Fisher were “able to elicit any explanation on how [the injuries] happened.”

        Dr. Daher testified that the CT scans and MRIs performed on the victim revealed “two
skull fractures on the right and on the left and [] several bleedings within the brain called

                                                -5-
subarachnoid hemorrhages.” She said that this type of hemorrhaging is the result of great
force or the skull coming into “direct contact with a solid surface” like a floor or wall or from
“something like a baseball bat” hitting the skull with “a fair amount of force.” The fracture
to the left leg was a spiral fracture, which she said was caused by “two opposing forces,”
similar to when someone holds the leg in both hands and twists. She said the victim had rib
fractures on the back of the second and eighth right ribs, which were also caused by extreme
force. Although she agreed that CPR could have caused the fracture on the eighth rib, she
said that it was “extremely unlikely.” She explained that typically, if CPR caused a fracture,
then the clavicle would also be fractured. She said that the victim did not have a fractured
clavicle and that there was “nothing in [the victim’s] history to indicate that a CPR was
done.” Because the victim’s injuries were all over his body, Dr. Daher opined that they were
not caused by a single accidental event. Finally, she agreed that it was fair to characterize
the victim’s injuries as non-accidental.

       On cross-examination, Dr. Daher admitted that she had very limited contact with the
victim’s mother and no contact with Gold. She agreed that Dr. Fisher had communicated his
suspicion of child abuse to her before she saw the victim’s scans and X-rays. She confirmed
that Dr. Fisher was a pediatrician and that Dr. Neal was the emergency room physician who
saw the victim and noted her suspicion of non-accidental trauma in his chart. She observed
the victim on October 20, 21, 22, and 23, 2008. She was unable to determine exactly when
the skull fractures occurred but opined that they were a “couple of days” old. While she
agreed that a 200-pound man falling to the ground would generate quite a bit of force, she
denied that it could have caused the victim’s injuries due to the pattern of injuries on the
victim’s body.

        Dr. Marianne Neal, a pediatric radiologist at the Johnson City Medical Center,
testified as an expert in the field of pediatric radiology. She reviewed the victim’s head CT,
skeletal survey, brain MRI, bone scan, and chest X-rays, all of which were admitted as an
exhibit at trial. The victim’s birth records from Johnston Memorial Hospital were also
admitted as an exhibit. Dr. Neal testified that the head CT showed a skull fracture on the
left side of the brain and “bleeding on both sides of the brain, both in the subdural space and
the subarachnoid space, which are different layers of the brain.” She also found a calcified
area on the left side of the skull, which she “considered [to be] a birth injury.” Dr. Neal said
that the skeletal survey showed “a left lower leg fracture,” and the CT of the abdomen and
pelvis showed “a healing right eight rib fracture.”

       Dr. Neal estimated that the victim’s brain hemorrhage was less than ten days of age.
She said that it was “very difficult” to determine when the skull fractures occurred; however,
the presence of soft tissue swelling indicated that they were less than two weeks old. She
further explained that the leg fractures or spiral fractures showed no signs of healing, which
indicated they were less than seven days old. Dr. Neal said that spiral fractures are caused

                                               -6-
by significant force and cannot be caused by a fall. She also noted that the victim had
posterior rib fractures, which she considered suspicious because the victim was a non-
ambulating infant with no history of severe trauma.

        Based on the November 6, 2008 follow-up chest X-ray, Dr. Neal identified six
fractures to the back side of the victim’s ribs. She stated that at the time of this X-ray the rib
fractures were healing, and she estimated that the fractures occurred between seven and
fifteen days prior to the X-ray. She believed that the type of fractures revealed by the X-ray
were highly suspicious because they were caused by shaking or squeezing the victim. She
explained that “[r]ib fractures are very, very rare in infants and children. . . . because of the
plasticity or the bendability of the thoracic cage. It can bend with heavy weights on it and
not break because of the bendability.” She added that such fractures are rarely seen “[e]ven
in high-speed motor vehicle collisions.” Finally, Dr. Neal stated within a reasonable degree
of medical certainty that the victim’s injuries resulted from non-accidental trauma. She
confirmed that movement of a child’s fractured leg would cause pain and that the act of
moving or grabbing the chest of a child with a fractured rib would cause pain. She forwarded
her report and review of the X-rays and CT scans of the victim’s injuries to CPS Case
Investigator Buckles in two different letters, both of which were admitted as exhibits.

       On cross-examination, Dr. Neal acknowledged that an adult falling on top of a child
could cause rib injuries. She also acknowledged that she never observed or treated the
victim. On redirect-examination, Dr. Neal testified that DCS asked her to examine the X-
rays. She did not believe that all of the victim’s injuries were caused by a single traumatic
event. She said that the rib fractures showed “different states of healing” and that the
bleeding in the brain appeared to be less than three days old. She testified that the spiral leg
fracture resulted from twisting, not a fall, and for “a non-ambulating infant, there is no
accidental explanation.” On recross-examination, Dr. Neal agreed that the spiral fracture
could have been caused by the lower part of the leg being pinned down while the upper
portion of the body was turned.

        Frank Kibler, Gold’s stepfather, testified that prior to the instant offense, he and his
wife saw the victim about three times a week and kept the victim overnight a couple of times.
He changed the victim’s diapers and never saw any injuries before October 19, 2008. Kibler
said that he never saw Gold violent, angry, or resentful toward the victim and that Gold was
a loving father who was “thrilled to have . . . the child.” He confirmed that on October 19,
2008, he and his wife visited the victim at Gold’s house and tried to determine the source of
the victim’s fussiness. He said the victim was “very calm” while he walked with him around
Gold’s house before he and his wife left. He said that the victim was normal in every way
and had no lasting effects as a result of the injuries from October 2008. On cross-
examination, Kibler said that when he saw the victim at Gold’s house October 19, 2008, he


                                               -7-
thought the victim was in discomfort, not pain, and he did not notice any markings or bruises
on his face.

        Judy Kibler, Gold’s mother, testified that prior to the offense she saw the victim about
three times a week and that the victim sometimes slept overnight at her home. She said that
Gold was excited about the victim and “was reveling in all of his accomplishments, however
minor they were.” She testified that Gold never expressed anything other than pride and love
for the victim, that she never saw anger or resentment in Gold, and that she never saw Gold
handle the victim in anger. She confirmed that on October 19, 2008, she observed the victim
at Gold’s home. She said that the victim was “unusually fussy” and “was whimpering, and
he had his hands clinched kind of tight to him. . . . He just looked very uncomfortable.” She
initially believed that the victim had gas pressure and purchased some Mylicon drops for
him. She and her husband held the victim but did not change his diaper and did not observe
any injuries. She said that they showed Gold and Evans how to administer the Mylicon
drops, and the victim “seemed to get a little bit more comfortable.”

         Mrs. Kibler said that when she returned to Gold’s house that evening, the victim was
“still fussy, still uncomfortable, not normal for someone who might have had a little bit of
gas.” She explained that, considering the victim’s age, she believed “somebody professional
[should] look at him.” She said that when she was pulling the victim out of the car, Evans
told her the victim had a bruise on his back, but she did not understand the significance of
that statement. Gold and Mr. Kibler came to the hospital later, and Gold and Evans stayed
in the hospital with the victim until they were told to leave. She never observed Gold engage
in abusive behavior toward the victim.

       On cross-examination, Mrs. Kibler acknowledged that the victim was prescribed pain
medicine and wore a cast until November 4, 2008. She agreed that she kept the victim on
the Friday morning prior to his hospitalization, that she changed his diaper, and that there
were no visible injuries at that time. She acknowledged that she later observed bruising on
the victim’s face in the photograph of him taken at the hospital, but explained that she did
not notice it at Gold’s house October 19, 2008.

      Jeffrey Scott Gold, the Defendant-Appellant, testified that he met Evans in 2007 and
began dating her “off and on.” After some time, Gold accepted Evans’s unexpected
pregnancy and prepared to be a father to his first child. He purchased and remodeled a new
house. He said he had feelings for Evans and asked her to move in with him because he
“wouldn’t know if [he] didn’t give it a shot.” He agreed that for the sake of his son he
wanted to give his relationship with Evans a chance to grow.

       Gold testified that in mid-October 2008, while feeding the victim a bottle, he dropped
the bottle, reached for it, and bumped the victim’s head on a table. It left a mark but not a

                                              -8-
visible bruise. He denied putting makeup on the victim’s face and said that he put baby
powder on it because he had been told that “it was good for a baby’s skin.” He told Evans
what happened and did not observe any signs of distress or pain from the victim. Gold said
that he loved the victim “more than anything.”

       Gold confirmed that Evans took the victim to visit her family and returned home with
the victim on October 18, 2008, around 9:30 p.m. or 10:30 p.m., and Evans and the victim
went to bed. Gold went to sleep around midnight on the couch and awoke to the victim’s
cries. He said he got the victim out of his bassinet and held him. Between 2:30 and 3:00
a.m., Gold went downstairs in his basement to change out the laundry. With the victim in
his arms, Gold slipped and fell on the hardwood floors. In doing so, Gold “fell on top of [the
victim]; but went down to the first, second, and third of the stairs; but caught him. I had him
embraced within me. And it happened so quick[ly,] and I was scared to death.” He said the
victim was in his left arm and, as he pulled the victim to him, the full weight of his body
landed on the victim. Immediately after the fall, he examined the victim “from head to toe”
and observed that the victim had a nose bleed and red marks on his back. He did not observe
any bruises. He tried to comfort the victim, but the victim remained fussy through the
morning. He said he did not tell Evans about the fall because he was scared, did not want
her to worry, and was afraid of making himself “look bad as a father.” He was also fearful
that he would lose custody of his son. Finally, Gold believed that the victim was “okay.”

         Gold acknowledged that Evans asked to take the victim to the emergency room, but
he said that she “never really . . . pushed it.” He also acknowledged that when Evans asked
him about the victim’s bruises, he became defensive. He said that he and Evans had never
physically confronted one another until that day, when Evans pushed him, and he pushed her
back. Gold said he did not tell his mother about the fall because he “was worried about
myself, what people would think of me, and [I] was not putting [the victim] first, and I should
have. . . . I definitely regret that.” He admitted telling Evans that he would not pay for the
victim to go to the hospital but explained that “[i]t was just a dispute; just mixed emotions
at the time.” He said that he would have taken care of the victim financially because he had
insurance.

        Gold confirmed that his mother told him to take the victim to the hospital. He said
that he told her not to take the victim to the hospital because he knew of a friend who lost
custody of his child when the child was taken to the hospital after an accident. When Gold
was informed of the extent of the victim’s injuries, he went to the hospital and stayed with
Evans and the victim until he was told to leave. Gold denied intentionally hurting the victim
or abusing the victim in any way. He agreed that he omitted from his statement to the police
that he had fallen down the stairs and landed on top of the victim. He explained that he was
“scared to death” and believed that he would lose custody of the victim. He said that he
“own[ed] up to” the bad decisions he made after the tragic accident.

                                              -9-
       On cross-examination, Gold viewed exhibit fourteen, a photograph of the victim taken
at the hospital. The photograph showed the victim with intravenous tubes inserted in his
body and a cast on his left leg. After viewing the photograph, Gold agreed that the victim
appeared to be in extreme pain. Gold said that the bruises on the victim’s back came from
his hand gripping him during the fall. He said that he was six feet two inches tall and that
the impact was “three to four feet high off the ground.” Gold acknowledged that he was
dishonest with police officers and that he should have told them the truth. Gold said that,
other than his mother, he did not tell anyone about the fall until the trial.

       Based on the above proof, the jury convicted Gold as charged. After a sentencing
hearing, the trial court enhanced Gold’s sentence based upon the victim’s vulnerability
because of his age and found that it “deserve[d] more weight” than the applicable “catch-all”
mitigating factor. The trial court imposed a concurrent term of twenty-two-years’ and
imposed a $50,000 fine for each conviction. Gold timely filed motion for new trial, which
the court denied. He then filed a timely notice of appeal.

                                         ANALYSIS

       I. Motion to Allow Deposition. Gold contends that the trial court erred “in granting
the State’s request for depositions of Dr. Amirah Daher and in releasing Dr. Daher from her
subpoena.” Gold argues that because Dr. Daher had been properly served with a subpoena,
she was not unavailable under Rule 15(h)(1)(E) of the Tennessee Rules of Criminal
Procedure. He also argues that the State’s inconvenience of paying to transport Dr. Daher
from Saudi Arabia to testify at trial does not rise to the level of an exceptional circumstance.
In response, the State contends that Gold has waived this issue by failing to challenge on
appeal the admission of the deposition at trial. Alternatively, the State argues that the trial
court properly allowed Dr. Daher’s deposition and that Gold has failed to show the admission
of the deposition at trial prejudiced him.

        The decision whether to grant or deny a motion to take the deposition of a proposed
witness for use at a criminal trial is committed to the discretion of the trial court and should
be exercised carefully. United States v. Mann, 590 F.2d 361, 365 (1st Cir.1978); see also
United States v. Campbell, 845 F.2d 1374, 1378 (6th Cir.1988) (applying an abuse of
discretion standard of review to trial court’s determination of exceptional circumstances in
support of video deposition). Tennessee Rule of Criminal Procedure 15(a) states that “[a]
party may move that a prospective witness be deposed in order to preserve testimony for
trial” and that the trial court may “grant the motion because of exceptional circumstances and
in the interest of justice[.]” Tenn. R. Crim. P. 15(a). In addition, Tennessee Rule of Criminal
Procedure 15(f) outlines the situations in which a deposition can be admitted as substantive
evidence:


                                              -10-
       (1) In General. At the trial or in any hearing, a party may use a part or all of
       a deposition–otherwise admissible under the Tennessee Rules of Evidence–as
       substantive evidence if:
       (A) the witness is unavailable as defined in Rule 15(h); or
       (B) on motion and notice, the court–in the interest of justice with due regard
       to the importance of presenting the testimony of witnesses orally in open
       court–finds such exceptional circumstances exist that make it desirable to
       allow the deposition to be used.

Tenn. R. Crim. P. 15(f); see State v. Singleton, 853 S.W.2d 490, 493 (Tenn. 1993) (“Rule 15
of the Tennessee Rules of Criminal Procedure narrowly restricts the availability of
depositions in criminal cases, reserving their use to ‘exceptional circumstances,’ when the
‘interest of justice’ requires that a deposition be taken to preserve the testimony of a
prospective witness who is unlikely to be able to testify at trial.”). A witness is considered
unavailable under Rule 15(h) where the witness:

       (A) is exempted by court ruling on the ground of privilege from testifying
       concerning the subject matter of the declarant’s statement;
       (B) persists in refusing to testify concerning the subject matter of the
       declarant’s statement despite a court order to do so;
       (C) demonstrates a lack of memory of the subject matter of the declarant’s
       statement;
       (D) is unable to be present or to testify at the hearing because of the
       declarant’s death or then existing physical or mental illness or infirmity; or
       (E) is absent from the hearing and the party seeking to introduce the
       declarant’s statement has been unable to procure the declarant’s attendance by
       process or other reasonable means.

Tenn. R. Crim. P. 15(h).

        The Advisory Commission Comment to Rule 15 cautions that “depositions are not
meant to function as discovery devices in criminal cases” and that “[t]heir taking is meant
to be tightly confined to those exceptional cases where the interests of justice require the
taking for the preservation of testimony for use at trial, and not for discovery.” Tenn. R.
Crim. P. 15, Advisory Comm’n Comment. Moreover, the burden is on the moving party to
demonstrate that exceptional circumstances exist warranting the taking of a deposition to
preserve a witness’s testimony for trial or the admission of the witness’s deposition as
substantive evidence at trial. With the exception of section (f)(1), Rule 15 is modeled after
its federal counterpart. See id. However, unlike the federal rule, Tennessee has no formal
test to determine whether exceptional circumstances exist warranting the use of a deposition
as substantive evidence at trial. Compare U.S. v. Philip Driscoll, No. 1:05-CR-103, 2006

                                             -11-
WL 2883382, at *3 (E.D. Tenn. October 10, 2006) (reiterating that the factors for
determining whether a trial court should allow the taking of a deposition pursuant to Federal
Rule of Criminal Procedure 15 are “whether (1) the witness is unavailable to testify at trial;
(2) injustice will result because testimony material to the movant’s case will be absent; and
(3) countervailing factors render taking the deposition unjust to the nonmoving party”).2

      Although Gold does not challenge the taking of or the admissibility of the deposition
on constitutional grounds, this Court has previously stated:

        [A]ny interpretation of Tenn. R. Crim. P. 15 must be made against the
        backdrop of constitutional protections that inhere in the Confrontation Clause
        of the Sixth Amendment to the United States Constitution and Article 1,
        Section 9 of the Tennessee Constitution. It is against this backdrop that the
        Advisory Commission Comments to Tenn. R. Crim. P. 15 record the
        Commission’s intent “that depositions be taken only in those cases wherein
        their use is clearly necessary, and that their taking not be authorized in other
        cases.”

State v. Coulter, 67 S.W.3d 3, 59 (Tenn. Crim. App. 2001), disagreed with on other grounds
by State v. Jackson, 173 S.W.3d 401, 407 (Tenn. 2005). In other words, a “deposition is a
weak substitute for live testimony, a substitute that the Sixth Amendment does not
countenance on a routine basis.” Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993).

        On March 22, 2011, the State filed a motion to depose Dr. Daher, a prospective
witness in Gold’s trial. During the hearing on the motion, neither party offered any proof.
The State advised the trial court that Dr. Daher would be unavailable to testify at Gold’s trial
because she was “moving permanently to Saudi Arabia” on May 15, 2011. Gold’s trial was
scheduled for September 2011. The State requested permission from the trial court to
conduct a video deposition of Dr. Daher’s testimony. Because Dr. Daher had been served
with a subpoena to testify at the trial, defense counsel objected to the video deposition. The
State advised the trial court that it would incur “considerable expense” if it brought Dr. Daher
back from Saudi Arabia for the trial and that Dr. Daher was a necessary witness because she
treated the victim. Based on this information, the trial court determined that exceptional
circumstances existed warranting a video deposition to preserve Dr. Daher’s testimony for
trial. The court noted that “if this [Dr. Daher] gets to Saudi Arabia, my writ doesn’t run in
Saudi Arabia. I don’t know if there’s even any international treaties that might exist to bring
[her] back.” The trial court ordered Gold, his attorney, and the State’s attorney to appear in
court to participate in the video deposition of the physician.

        2
           Neither party advocates for the adoption of a formal test to determine exceptional circumstances
and in the interest of justice under Rule 15; therefore, we decline to address that issue in this appeal.

                                                   -12-
      On May 11, 2011, the State deposed Dr. Daher in the presence of the trial judge,
defense counsel, and Gold. Defense counsel renewed his objection to the video deposition,
which the trial court overruled.

        At trial, Gold renewed his objections “to the taking of the depositions and . . .to using
a video deposition at trial.” Additionally, in his motion for new trial, Gold contested the trial
court’s order granting the State’s request to depose Dr. Daher. However, in his appellate
brief to this court, Gold challenges only the trial court’s order granting the State permission
to depose Dr. Daher and not the use of or admission of the deposition at trial. Accordingly,
we conclude that Gold has properly preserved for our review only the issue of whether the
trial court properly granted the State’s motion to depose Dr. Daher. See Tenn. R. App. P.
27(a)(4) (“The brief of the appellant shall contain . . . [a] statement of the issues presented
for review[.]”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”).

        Gold correctly notes that Dr. Daher was not unavailable under the circumstances
outlined in Rule 15(h). However, the trial court’s decision to allow the State to take the
video deposition of Dr. Daher was not based on her unavailability for the trial. Instead, the
trial court determined that Dr. Daher’s impending permanent relocation to Saudi Arabia
constituted an exceptional circumstance under Rule 15 warranting the preservation of her
testimony by video deposition. Gold further argues that the “inconvenience to the State does
not rise to the level of an exceptional circumstance.” Here, we are compelled to note that
there was no proof offered at the hearing to establish whether exceptional circumstances
existed to support taking Dr. Dahir’s deposition. Neither party explored the circumstances
of Dr. Daher’s impending departure. There were no questions posed to Dr. Daher concerning
whether she could return voluntarily to the United States, whether she could delay her
relocation until after the trial, or whether she would experience any personal hardship if
required to delay her plans or return to the United States. Moreover, the State offered only
conclusory statements regarding the expense it would incur if required to pay for the return
of Dr. Daher.

        We acknowledge that the trial court granted the State’s motion based, in large part,
on its belief that it did not have legal authority to require Dr. Dahir to return to the United
States. While this may indeed be true, this court requires more than conclusory statements
to establish whether exceptional circumstances and the interest of justice demands a Rule 15
deposition. Nevertheless, upon our review of the record, we fail to see and Gold has failed
to demonstrate any prejudice as a result of the State taking Dr. Dahir’s deposition.

      Additionally, in light of our concerns under the Confrontation Clause, the record
shows that the trial court properly notified the parties of the impending video deposition.

                                              -13-
Gold, his attorney, and the State’s attorney participated in the deposition, and defense
counsel was able to conduct a full cross-examination of Dr. Daher at that time. Accordingly,
the taking and admission of Dr. Daher’s deposition did not violate Gold’s rights under the
Confrontation Clause. Upon our review, we conclude that the trial court did not err in
granting the State’s motion to depose Dr. Daher and that Gold has failed to show any
prejudice resulting from the admission of Dr. Daher’s video deposition as substantive
evidence at trial. See State v. Simon, 635 S.W.2d 498, 504 (Tenn. 1982) (holding that the
admission of a deposition of an eyewitness who was in the military and required to leave the
state prior to trial did not violate Rule 15); see also United States v. Johnson, 752 F.2d 206,
210 (6th Cir. 1985) (holding that a witness’s ability to be present at trial does not prevent the
taking of a deposition under Rule 15 of the Federal Rules of Criminal Procedure). He is not
entitled to relief on this issue.


        II. Denial of Motion for Judgment of Acquittal. Gold argues that the trial court
erred in denying his motion for judgment of acquittal on count two, aggravated child neglect,
because the proof showed that the victim “was taken to the emergency room and began
receiving treatment on the same day as the alleged abuse,” and that “[t]here was no evidence
introduced to show that [Gold’s] actions or inactions after the injuries occurred affected the
victim’s health and welfare.” In response, the State contends that the evidence was sufficient
to support Gold’s conviction for aggravated child neglect because the proof showed that “due
to efforts of [Gold] to prevent his son from receiving medical treatment, the child
experienced extreme physical pain that could have been alleviated with proper medical care.”

       “The standard by which the trial court determines a motion for judgment of acquittal
at the end of all the proof is, in essence, the same standard which applies on appeal in
determining the sufficiency of the evidence after a conviction[.]” State v. Thompson, 88
S.W.3d 611, 614-15 (Tenn. Crim. App. 2000); State v. Ball, 973 S.W.2d 288, 292 (Tenn.
Crim. App. 1998); State v. Blanton, 926 S.W.2d 953, 957-58 (Tenn. Crim. App. 1996).
Because a motion for judgment of acquittal is a question of law, the trial court is permitted
only to review the legal sufficiency of the evidence rather than the weight of the evidence.
State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995) (citing State v. Hall, 656
S.W.2d 60, 61 (Tenn. Crim. App. 1983)).

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

                                              -14-
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

        The trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A
guilty verdict also “removes the presumption of innocence and replaces it with a presumption
of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

       Here, Gold challenges the evidence supporting count two of the presentment, which
charged him with aggravated child neglect. In order to sustain a conviction of aggravated
child neglect the State was required to prove that Gold committed the offense of child neglect
or endangerment which resulted in serious bodily injury to the child. T.C.A. § 39-15-402(a)
(Supp. 2008). Code section 39-15-401(b) defines child neglect or endangerment as
“knowingly abus[ing] or neglect[ing] a child under eighteen (18) years of age, so as to
adversely affect the child’s health and welfare[.]” Id. § 39-15-401(b) (Supp. 2008). At the
time of his offense, serious bodily injury was defined as bodily injury involving a substantial
risk of death, protracted unconsciousness, extreme physical pain, protracted or obvious
disfigurement, or protracted loss or substantial impairment of a function of a bodily member,
organ or mental faculty. Id. § 39-11-106(34) (Supp. 2008).

        Gold relies upon State v. Mateyko, 53 S.W.3d 666 (Tenn. 2001) and State v. Wanda
Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053 (Tenn. Crim. App. Mar.
16, 2011), to support his argument that the trial court erred in denying his motion for
judgment of acquittal on the aggravated child neglect charge. In Mateyko, the Tennessee
Supreme Court held that “before a conviction for child neglect may be sustained, the State
must show that the defendant’s neglect produced an actual, deleterious effect or harm upon
the child’s health and welfare.” 53 S.W.3d at 671-72. Additionally, in Wanda Elaine Brock,
this court held that “where a defendant is convicted of both aggravated child abuse and
aggravated child neglect . . . there must exist some evidence that the alleged act of neglect
resulted in serious bodily injury in addition to and apart from the serious bodily injury caused
by the initial act of abuse.” 2011 WL 900053, at *5; Compare State v. Marcos Acosta

                                             -15-
Raymundo, No. M2009-00726-CCA-R3-CD, 2010 WL 4540207, at *15 (Tenn. Crim. App.
Nov. 10, 2010) (concluding that the defendant’s delay in seeking help for the victim until she
collapsed did not have an actual, deleterious effect on her health because the victim’s
collapse was caused by the abuse, not the delay), and State v. John Barlow, No. W2008-
01128-CCA-R3-CD, 2010 WL 1687772, at *11 (Tenn. Crim. App. Apr. 26, 2010) (holding
the evidence failed to demonstrate that the defendant’s delay in seeking medical care for the
victim caused additional brain damage when medical experts testified generally to the risk
of continued swelling of the brain but the evidence failed to show an actual, deleterious effect
on the victim caused by the delay), and State v. Denise Wiggins, No. W2006-01516-CCA-
R3-CD, 2007 WL 3254716, at *5 (Tenn. Crim. App. Nov. 2, 2007) (holding that the burn
from an iron, rather than the defendant’s failure to seek medical help, caused the child’s
serious bodily injury), and State v. Vernita Freeman, No. W2005-02904- CCA-R3-CD, 2007
WL 426710, at *8, n.1 (Tenn. Crim. App. Feb. 6, 2007) (vacating the aggravated child
neglect conviction, despite medical testimony that the victim might have survived had she
received prompt medical attention, because the proof failed to show that the act of neglect
caused the serious bodily injury), with State v. Christopher Earl Watts, No. M2009-02570-
CCA- R3-CD, 2012 WL 1591730, at *19 (Tenn. Crim. App. May 3, 2012), perm. app.
denied (Tenn. Sept. 21, 2012) (concluding that the evidence was sufficient to support the
defendant’s conviction for aggravated child neglect when the defendant failed to seek
medical attention for the victim until he stopped breathing, which resulted in the victim’s
permanent brain injury), and State v. Lakeisha Margaret Watkins, No. M2009-02607-CCA-
R3-CD, 2011 WL 2682173, at *25 (Tenn. Crim. App. July 8, 2011) (affirming the conviction
for aggravated child neglect when the defendant’s failure to seek medical attention until after
victim stopped breathing caused injury to his brain from the lack of oxygen and the
defendant’s “failure to seek medical treatment after the first seizure posed a substantial risk
of death”).

        Relying on State v. Kathryn Lee Adler, No. W2001-00951-CCA-R3-CD, 2002 WL
1482704, at *5 (Tenn. Crim. App. Feb. 19, 2002), the State insists that the elements of
aggravated child neglect were met because the victim experienced extreme physical pain due
to Gold’s failure to seek prompt medical treatment. In our view, Kathryn Lee Adler is
distinguishable from Gold’s case because the evidence in that case showed that the
defendant’s failure to seek medical care increased the victim’s risk of serious bodily injury.
In that case, Adler’s husband sought medical attention for the victim following the victim’s
seizure, which was nearly seventy-two hours after the initial abuse. Id. at *1. The physicians
testified that the victim had “‘very, very extremely burned areas’” on fifteen percent of his
body that were “‘extremely painful,’” and that “the failure to seek prompt medical attention
placed the victim at a substantial risk of serous bodily injury or death.” Id. at *2.

       Here, the record is devoid of any proof concerning what effect, if any, Gold’s failure
to seek prompt medical care had on the victim’s injuries. See Denise Wiggins, 2007 WL

                                              -16-
3254716, at *5 (noting that “[w]hile the question of whether the Appellant sought medical
treatment is relevant to [whether the defendant knowingly neglected the child] . . . , it is not
dispositive of the second element required for conviction,” which is whether the neglect
resulted in serious bodily injury to the child). There was also no proof that the victim
suffered any injury after the initial act of abuse. Given the above authority, we are unable
to conclude that Gold’s failure to seek medical treatment resulted in serious bodily injury in
addition to and apart from the serious bodily injury caused by the initial act of abuse. See
id. at *5. Therefore, we reverse and vacate the judgment of conviction for aggravated child
neglect.

        III. Sentencing. Gold contends that the trial court imposed an excessive sentence.
Specifically, he insists that his sentence of twenty-two years is greater than that deserved for
this single criminal incident. He also argues that the trial court failed to give sufficient
weight to the “catch-all” mitigating factor and requests this Court to conduct a “de novo
review and correct this injustice.” In response, the State contends that the 2005 amendments
to the Sentencing Act of 1989 deleted as grounds for appeal a claim that the trial court
improperly weighed enhancement and mitigating factors and that State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012), abrogated the de novo standard of review. Regardless, the State
contends that the trial court did not err in imposing the twenty-two-year sentence. We agree
with the State.

       Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the
following when determining a defendant’s specific sentence:

       (1) The evidence, if any, received at the trial and the sentencing hearing;
       (2) The presentence report;
       (3) The principles of sentencing and arguments as to sentencing alternatives;
       (4) The nature and characteristics of the criminal conduct involved;
       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and
       (7) Any statement the defendant wishes to make in the defendant's own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (Supp. 2008). The defendant has the burden of showing the
impropriety of the sentence on appeal. Id. § 40-35-401(d) (Supp. 2008), Sentencing Comm’n
Comments.

       Because of the broad discretion given to trial courts by the 2005 amendments to the
sentencing act, “sentences should be upheld so long as the statutory purposes and principles,

                                              -17-
along with any applicable enhancement and mitigating factors, have been properly
addressed.” Bise, 380 S.W.3d at 706. Moreover, “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as there are
other reasons consistent with the purposes and principles of sentencing, as provided by
statute, a sentence imposed by the trial court within the appropriate range should be upheld.”
Id. Therefore, this court reviews a trial court’s sentencing determinations under “an abuse
of discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Id. at 707.

        At the November 21, 2011 sentencing hearing, the parties agreed that Gold had no
prior criminal record and was a Range I, standard offender convicted of two Class A felonies,
which carried a sentencing range of fifteen to twenty-five years. The State entered Gold’s
presentence report as an exhibit. The report showed that the victim was Gold’s only child,
and while on bond, Gold received medication for a depressive disorder and general anxiety
disorder. The court rejected the State’s request to apply as an enhancement factor Gold’s
military reprimand, which did not involve a court martial or conviction.

       Several witnesses testified on Gold’s behalf. David Anderson testified that he met
Gold after the offense occurred, allowed Gold to be with his young children regularly, made
Gold the godparent of his one-year-old, and considered the offense out of character for Gold.
He recommended Gold at his workplace and testified to his stellar job performance. A letter
from Gold’s employer, admitted into evidence, stated that Gold “would be eligible for
rehire.” On cross-examination, Anderson acknowledged that he had a felony conviction
regarding a counterfeit controlled substance.

       Laurey Conway, a family friend, testified that she had known Gold since he was a
year old and that Gold had helped her raise her son. She said dishonesty was not consistent
with Gold’s character.

       Gold’s stepfather, Frank Kibler, testified that Gold was a hard worker and a “good
kid.” He said that he was proud to have Gold as his stepson. He did not believe Gold
intentionally harmed the victim. He stated that he and his wife had permanent custody of the
victim, who was a healthy, happy child with no permanent injuries, disfigurements, or brain
damage. Gold’s mother, Judy Kibler, testified that she thought Gold was “scared out of his
mind” when the victim was injured and that Gold’s behavior was inconsistent with his
normal behavior. She asked the court for mercy on behalf of her son.

       Gold, age thirty, testified that he graduated from high school and attended some
college classes while in the Army. He received commendations and an honorable discharge

                                             -18-
from the Army after receiving a service-related injury to his left palm. He received disability
from the Army and worked until he was incarcerated. He had no criminal or juvenile court
record. He acknowledged that he had made mistakes and had accepted responsibility for
them. He read a prepared statement in which he professed his love for his son, the victim,
and apologized to him, his friends, and family. He said that he had jobs waiting on him in
Tennessee and Arkansas, which would enable him to pay his fines.

       The trial court considered the “catch-all” mitigating factor and determined that it was
outweighed by the victim’s vulnerability because of his age. See T.C.A. § 40-35-113(13),
-114(4) (Supp. 2008). It then imposed concurrent twenty-two year sentences, which were
within the sentencing range, and imposed $50,000 fines for each conviction. Although we
have reversed and vacated Gold’s conviction for aggravated child neglect, the trial court’s
oral findings show that the trial court carefully considered the evidence, the applicable
enhancement and mitigating factors, and the purposes and principles of sentencing before
sentencing Gold. Therefore, Gold has failed to show that the trial court abused its discretion
in imposing the sentence in this case. He is not entitled to relief.

                                      CONCLUSION

       Upon our review, we conclude that the trial court did not err in allowing the State to
depose Dr. Daher to preserve her testimony for trial and that the trial court did not abuse its
discretion in imposing the sentence in this case. However, because we conclude that there
was no proof showing that Gold’s failure to seek prompt medical attention following the
victim’s injuries resulted in serious bodily harm to the victim, we reverse and vacate the
aggravated child neglect conviction and remand this matter to the trial court for entry of an
amended judgment consistent with this opinion. We affirm the aggravated child abuse
conviction and sentence.


                                           ______________________________
                                           CAMILLE R. MCMULLEN, JUDGE




                                             -19-
