         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE         FILED
                             AUGUST 1997 SESSION
                                                     November 20, 1997

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )    NO. 01C01-9607-CR-00285
      Appellee,                       )
                                      )    DAVIDSON COUNTY
VS.                                   )
                                      )    HON. J. RANDALL WYATT, JR.,
DAVID PALMER,                         )    JUDGE
                                      )
      Appellant.                      )    (Aggravated Child Abuse)



FOR THE APPELLANT:                         FOR THE APPELLEE:

KARL DEAN                                  JOHN KNOX WALKUP
Public Defender                            Attorney General and Reporter

JEFFREY A. DeVASHER (appeal only)          KAREN M. YACUZZO
Senior Assistant Public Defender           Assistant Attorney General
1202 Stahlman Building                     450 James Robertson Parkway
Nashville, TN 37201                        Nashville, TN 37243-0493

WENDY S. TUCKER                            VICTOR S. JOHNSON, III
SHEILA JONES                               District Attorney General
Assistant Public Defenders
1202 Stahlman Building                     WILLIAM R. REED
Nashville, TN 37201                        Assistant District Attorney General
                                           Washington Square, Suite 500
                                           222 Second Avenue, N.
                                           Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, David Palmer, was convicted by a Davidson County jury of

aggravated child abuse. He was sentenced as a Class A felon to seventeen (17)

years as a Standard Offender in the Tennessee Department of Correction. On

appeal, he presents ten (10) issues for our review:

       (1) whether the trial court erred in denying his motion to suppress a
       statement made to his probation officer without Miranda warnings;

       (2) whether the trial court erred in denying his motion to exclude the
       testimony of his probation officer in its entirety;

       (3) whether the trial court erred in admitting certain photographs;

       (4) whether the trial court erred in allowing the opinion of a plastic
       surgeon regarding the non-accidental nature of the child’s injury;

       (5) whether the evidence is sufficient to support the finding of guilt;

       (6) whether the trial court erred in refusing to instruct the jury on
       identification of the defendant pursuant to State v. Dyle;

       (7) whether the trial court erred in instructing the jury on the minimum
       number of years defendant would serve before becoming eligible for
       parole;

       (8) whether defendant was entitled to a new trial on the basis of newly
       discovered evidence;

       (9) whether the trial court erred in sentencing the defendant for a
       Class A felony when the indictment did not allege that the child was
       under six (6) years of age; and

       (10) whether the indictment was fatally deficient for failing to allege
       the requisite mens rea.

After a thorough review of the record, we affirm the judgment of the trial court.



                                       FACTS



        On the evening of December 4, 1994, defendant and his girlfriend,

Shiwanda Bonds, brought Bonds’ fifteen-month old daughter to Centennial Medical

Center in Nashville. The child had a severe “submersion” burn on her right hand.

Because of the severity of the burn, the child was subsequently taken to the burn

center at Vanderbilt University Hospital.



                                            2
       Upon arriving at Centennial, Detective Duane Phillips spoke with defendant.

Defendant stated he and Bonds had been dating for over two (2) years but did not

live together. Defendant claimed that he was not present when the child was hurt

but helped bring the child to the hospital at Bonds’ request.

       Defendant also spoke that evening with Ron Reed, a case worker with the

Emergency Child Protective Services Division of the Department of Human

Services. Reed was contacted because of suspicions that the child’s injury was the

result of abuse. Likewise, defendant told Reed that he was not with the child when

she was burned.

       Bonds, the child’s mother, explained to the doctors at Vanderbilt that the child

was burned on a hot curling iron.

       Approximately two to three days later, defendant telephoned Reed to discuss

the incident. Reed testified at trial that “[defendant] told me that he did it, but that

he didn’t mean to.”

       Subsequently, defendant spoke with Tina Fox1 concerning the incident.

Defendant told her that he accidentally burned his girlfriend’s daughter’s hand in

some hot water.

       Dr. Ronald Barton, a plastic surgeon at Vanderbilt, testified that the child had

a “significant burn to her right hand, in essentially the distribution of a glove.” Dr.

Barton stated that the burn was consistent with the child’s hand being dipped in a

pot of hot water. He opined that the injury was compatible with physical abuse

rather than being accidental.

       Defendant did not present any proof.

       The jury returned a verdict of guilty of aggravated child abuse. Defendant

was sentenced as a Range I, Standard Offender, to seventeen (17) years for this

Class A felony. 2 From this conviction and sentence, he brings this appeal.




       1
         At this time, Fox was defendant’s probation officer on prior convictions for
vandalism and statutory rape. However, the fact that Fox was defendant’s probation officer
was not disclosed to the jury. Their conversation will be discussed more fully under Motion
to Suppress and Motion to Exclude, infra.
       2
           Bonds pled guilty to facilitation to commit aggravated child abuse.

                                              3
                            MOTION TO SUPPRESS



       Defendant contends that the trial court erred in denying his motion to

suppress a statement made to his probation officer prior to his arrest. He claims

that before the statement was given, he was not advised of his constitutional rights

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). Therefore, he argues that the statement was improperly admitted at trial.

                                         A.

       Defendant telephoned his probation officer, Tina Fox, prior to his arrest. He

told Fox that he was afraid that there was an outstanding warrant for his arrest in

connection with this incident. Fox asked him to come to her office, and defendant

agreed.

       Before defendant arrived at her office, Fox called the Metro Police

Department to determine if there was an outstanding warrant for defendant’s arrest.

A detective confirmed that defendant had an outstanding warrant and asked Fox to

call when defendant arrived.

       At Fox’s office, defendant told her that he had accidentally burned his

girlfriend’s daughter’s hand in some hot water. After a short conversation with Fox,

defendant was arrested by Metro Police officers at Fox’s office.

       The defendant sought to suppress the statement made to Fox that he

accidentally burned his girlfriend’s child’s hand in hot water. The trial court found

that the interview with Fox did not “become custodial.” Therefore, the trial court

denied defendant’s motion to suppress the statement.

                                         B.

       In Miranda v. Arizona, the United States Supreme Court held that the

prosecution cannot admit a statement by the defendant stemming from “custodial

interrogation” unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination. 384 U.S. at 444, 86 S.Ct. at 1612.

The Court defined “custodial interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise


                                         4
deprived of his freedom of action in any significant way.” Id. Thus, because

Miranda is only implicated when the defendant is questioned while in the coercive

environment associated with being in police custody, our initial inquiry is whether

defendant was subjected to “custodial interrogation.” In a subsequent case, the

U.S. Supreme Court found that a defendant was not “in custody” within the meaning

of Miranda when he made incriminating statements during a meeting with his

probation officer. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d

406 (1984).

      Recently, our Supreme Court developed the test in Tennessee for

determining whether an individual is “in custody” as contemplated by Miranda.

State v. Anderson, 937 S.W.2d 851 (Tenn. 1996). We must determine whether,

“under the totality of the circumstances, a reasonable person in the suspect’s

position would consider himself or herself deprived of freedom of movement to a

degree associated with formal arrest.” Id. at 855. Some factors relevant in that

determination include:

      the time and location of the interrogation; the duration and character
      of the questioning; the officer's tone of voice and general demeanor;
      the suspect's method of transportation to the place of questioning; the
      number of police officers present; any limitation on movement or other
      form of restraint imposed on the suspect during the interrogation; any
      interactions between the officer and the suspect, including the words
      spoken by the officer to the suspect, and the suspect's verbal or
      nonverbal responses; the extent to which the suspect is confronted
      with the law enforcement officer's suspicions of guilt or evidence of
      guilt; and finally, the extent to which the suspect is made aware that
      he or she is free to refrain from answering questions or to end the
      interview at will.

Id.

                                        C.

      In the case sub judice, defendant initiated contact with Fox by telephone.

Fox asked him to come to her office, and he agreed. At the suppression hearing,

Fox testified that defendant was free to leave at any time during their discussion.

She admitted that she would have attempted to talk him out of leaving but could not

have stopped him if he wanted to leave her office. Moreover, the nature of their

conversation was not coercive and lasted only five minutes. No law enforcement

officials were present during their discussion. Furthermore, there is no indication

                                        5
in the record that Fox’s demeanor was intimidating or threatening during the

meeting.

       We find that the defendant was not in custody when he told Fox that he

accidentally burned his girlfriend’s child’s hand in hot water. Because Miranda only

applies in instances of custodial interrogation, Fox was not required to advise

defendant of his constitutional rights. As a result, the statement was properly

admitted. This issue is without merit.



                              MOTION TO EXCLUDE



       In a pre-trial motion defendant sought to prohibit testimony by Tina Fox since

defendant’s probationary status would be revealed to the jury. In a written order,

the trial court denied defendant’s motion to exclude the testimony of Fox; however,

the court agreed to limit her testimony out of concern for the prejudicial effect of

defendant’s probation status coming before the jury. She was not allowed to bring

in any files or to tell the jury what her occupation was. She was merely allowed to

testify that defendant had admitted to her that he accidentally burned his girlfriend’s

daughter’s hand. Her trial testimony was extremely brief.

       Defendant now claims that he was unable to fully cross-examine Fox as to

possible prejudice or bias for fear of “opening the door” to testimony concerning his

probationary status. Consequently, he maintains that he was “forced” to relinquish

his constitutional right to fully confront an adverse witness.

       The propriety, scope, manner and control of the examination of witnesses is

a matter within the discretion of the trial judge and will not be disturbed in the

absence of an abuse of that discretion. State v. Dishman, 915 S.W.2d 458, 463

(Tenn. Crim. App. 1995); State v. Meeks, 876 S.W.2d 121, 128 (Tenn. Crim. App.

1993). In this instance, the trial court recognized that the mention of Fox’s official

status as a probation officer could have been prejudicial to the defendant. In

balancing the state’s need to introduce defendant’s admission against the possible

prejudice to the defendant, the trial court did not abuse its discretion in limiting the



                                           6
testimony of Fox. See, e.g., State v. Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994);

State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

          Defendant’s contention that he was denied the right to fully cross-examine

the witness is not supported by the record. Contrary to defendant’s position, the

trial court did nothing to limit defendant’s cross-examination of Fox. Rather, her

testimony on direct was restricted to prevent the jury from hearing that defendant

was on probation at the time he made his statement. Defendant was not restrained

by the trial court from inquiring into possible prejudice or bias of the witness.

          Furthermore, defendant failed to make an offer of proof as to what the

probative cross-examination would have been. Without such an offer of proof, this

Court is left to speculate how defendant was prejudiced. See Tenn. R. Evid.

103(a)(2). This issue is without merit.



                                    PHOTOGRAPHS



          In his third issue, defendant asserts that the trial court erred in allowing the

state to present photographs of the victim’s hand taken seven months after the

injury. First of all, he claims that the photographs were irrelevant to any issue at

trial. Secondly, he argues that even if the pictures were relevant, their probative

value was outweighed by the prejudicial effect. Therefore, he contends that the

photographs were improperly admitted.

          The trial court found that some of the photographs taken by Dr. Barton were

“highly inflammatory” and excluded those photographs on the basis that their

prejudicial effect outweighed any probative value. However, the court found that

three photographs were relevant to the issue of serious bodily injury. Furthermore,

the court found that their probative value was not outweighed by any prejudicial

effect.

          The admissibility of photographs lies within the discretion of the trial court

whose ruling in this respect will not be overturned on appeal except upon a clear

showing of an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn.



                                             7
1978); see also State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); State v.

Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995).              However, before a

photograph may be admitted into evidence, it must be relevant to an issue at trial

and its probative value must outweigh any prejudicial effect that it may have upon

the trier of fact. State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993).

       Relevant evidence is evidence “having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401. For the

offense of aggravated child abuse, the state was required to show that the victim

suffered “serious bodily injury.”      See Tenn. Code Ann. § 39-15-402(a)(1).

Photographs are relevant to prove the extent of injuries. State v. Norris, 874

S.W.2d 590, 597 (Tenn. Crim. App. 1993). Although the photographs were taken

some time after the injury was sustained, the trial court did not abuse its discretion

in finding that they were relevant to prove the element of “serious bodily injury.”

       Furthermore, the photographs were not inflammatory. The probative value

of the photographs outweighed any prejudicial effect they might have. This issue

is without merit.



                             DOCTOR’S TESTIMONY



       In his next issue, the defendant maintains that the trial court erred in allowing

Dr. Barton to testify that, in his opinion, the nature of the child’s injury was non-

accidental. He claims that the doctor was not properly qualified as an expert

witness on this issue. Additionally, he argues that the doctor’s testimony constituted

an improper comment on defendant’s credibility.

                                          A.

       During the direct examination of the doctor, the Assistant District Attorney

General asked if “the injury that [he] observed [was] compatible with a - - a history

of physical abuse?” The doctor replied, “[y]es.” The defendant did not object.

Subsequently, the following exchange took place:


                                           8
Q              Doctor, do you have an opinion within a
       reasonable degree of medical certainty as to whether or
       not with the type of injury, the type of burn that you saw
       and examined in this case was consistent with an
       accident or with someone deliberately burning this
       child’s hand?

       MS. TUCKER: Your Honor, at this point, I think I’m
       going to have to object. I don’t believe there’s been any
       foundation for this doctor to rule out any possible
       accident that could have happened. I don’t think he’s
       an expert in accidents. I think that he can testify that it’s
       consistent with child abuse. And - - and I think that’s
       where his expertise ends, as far as whether it was an
       accident or not.

       THE COURT:            ...

               I think you might need to rephrase that question.
       I - - I think the Doctor can testify about what would
       cause this or what - - what degree of hot water would - -
       what it - - what it would take to do this, but I don’t know
       if he can absolutely rule out an accident. I don’t - - I
       don’t know that either. So maybe rephrase the question
       and let him testify as to how he would expect something
       like this to have occurred.

....

Q              Is it compatible with - - with a burn from a curling
       iron?

A              No.

Q            And is it compatible with being dipped in a pot of
       hot water?

A              Yes.

Q              Is there anything that you observed in your
       diagnosis and treatment and observation of the child
       that is consistent with a child accidentally sticking her
       hand in a pot of hot water?

       MS. TUCKER: Your Honor, I think that - - that’s the
       same question, just rephrasing. That - -

       THE COURT: He - - he can - - he can answer that and
       then give his reasons. This is an opinion. And I’ll give
       you instructions at the end of the trial as to how you are
       to look at that, but I do think he’s qualified, having
       treated burns, having a specialty with burns to - - to give
       an opinion on that. So that will be overruled.

               Go ahead, please.

       THE WITNESS: I think this being an accident is very,
       very unlikely . . .

                                    B.


                                    9
       “If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. The qualification,

admissibility, relevancy and competency of expert testimony are matters that rest

within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562

(Tenn. 1993). A trial court’s decision with regard to expert testimony will not be

disturbed on appeal unless there was an abuse of discretion which was prejudicial.

State v. Tizard, 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994).

       Dr. Barton testified that he was board certified in general surgery and plastic

surgery. In his duties at Vanderbilt Hospital he is involved in research with burns

and hand injuries. He belongs to the American Burn Association and the American

Society for Surgery of the Hand, among others. The trial court did not abuse its

discretion in allowing the doctor to testify as to the nature of the child’s injury. See

State v. Caughron, 855 S.W.2d 526, 537 (Tenn. 1993).

       Moreover, the doctor testified without objection that the child’s burn was

consistent with physical abuse and compatible with her hand being dipped in a pot

of hot water. Any error is harmless, at best. Tenn. R. Crim. P. 52(a). This issue is

without merit.




                        SUFFICIENCY OF THE EVIDENCE



       In his fifth assignment of error, the defendant challenges the sufficiency of

the convicting evidence.      Specifically, he claims that the record “contains no

evidence, direct or circumstantial, that he caused or inflicted these injuries, other

than his own uncorroborated statements.” He further asserts that there is no

evidence in the record that he acted “knowingly.” As a result, he contends that

there is insufficient evidence to sustain the finding of guilt of aggravated child



                                           10
abuse.

                                          A.

       In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

Nor may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this court is required to afford the state the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914

S.W.2d 926, 932 (Tenn. Crim. App.1995).

       This court will not disturb a verdict of guilt due to the sufficiency of the

evidence unless the defendant demonstrates that the facts contained in the record

and the inferences which may be drawn therefrom are insufficient, as a matter of

law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt.

State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the

appellate court's duty to affirm the conviction if the evidence, viewed under these

standards, was sufficient for any rational trier of fact to have found the essential

elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e);

Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).



                                          B.

       Defendant maintains that the state did not sufficiently corroborate his

statements to Reed and Fox that he “accidentally” burned the child’s hand. The

corpus delicti of a crime may not be established by a confession alone. Ashby v.

State, 124 Tenn. 684, 139 S.W. 872 (1911). The corpus delicti of a crime requires

that the state prove two elements: (1) that a certain result has been produced, and

(2) that the result was created through criminal agency. State v. Ervin, 731 S.W.2d

70, 71-72 (Tenn. Crim. App. 1986).        The elements of corpus delicti may be

established by circumstantial evidence. Id. at 72. Furthermore, the question of


                                          11
whether the state has sufficiently proven the corpus delicti is a question for the jury.

Id. at 71.

       In the case sub judice, the defendant admitted to two people that he

“accidentally” burned the victim’s hand. The doctor’s testimony, combined with

other trial testimony, establishes the corpus delicti; that the child was burned other

than by accidental means. “Only slight evidence of the corpus delicti is necessary

to corroborate a confession and thus sustain a conviction.” Ervin, 731 S.W.2d at

72 (emphasis added). Defendant’s corroboration argument is without merit.

                                             C.

       Additionally, a reasonable trier of fact could conclude that defendant acted

“knowingly” when he burned the child’s hand. See Tenn. Code Ann. §§ 39-15-

401(a), 39-15-402. Although defendant’s statements claim that the child’s injury

was accidental, the jury was free to disregard that version. The medical testimony

justified them doing so. A jury verdict approved by the trial judge accredits the

state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). The evidence is sufficient to support a finding of guilt beyond a reasonable

doubt of aggravated child abuse. This issue is without merit.




                       IDENTIFICATION JURY INSTRUCTION



       The defendant alleges that the trial court erred in refusing to charge the jury

on identification pursuant to State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). He claims

that he put his identity at issue during trial, and the trial court’s refusal to give this

instruction amounted to error. 3

       In State v. Dyle, our Supreme Court devised a jury instruction on eyewitness

identification of the defendant. 899 S.W.2d at 612. The court noted the inherent



       3
         Although the trial court refused the defendant’s requested instruction, the jury was
given the abbreviated pattern charge on identity. See T.P.I. Crim. 37.17 (2d ed. 1988).

                                             12
“fallibilities” of eyewitness identification and the need for a particularized instruction

to help protect defendants against such problems. Id.

       While defendant is correct in his assertion that failure to give the instruction

when eyewitness identification is a material issue would be error, the state

presented no eyewitness testimony. Indeed, by defendant’s own statement he

admitted that he burned the child.

       The Dyle instruction was developed to protect against the problems incurred

with eyewitness identification. The Dyle instruction lists certain factors for the jury

to consider.    All of these factors concern the circumstances surrounding an

eyewitness identification. The Dyle instruction is inapplicable here and would have

been confusing to the jury. This issue is without merit.



                 RANGE OF PUNISHMENT JURY INSTRUCTION



       In defendant’s seventh issue, he contends that the trial court erred in

instructing the jury on the minimum number of years the defendant would serve

before becoming eligible for parole. He claims that Tenn. Code Ann. § 40-35-

201(b), which requires that parole eligibility be charged in conjunction with a range

of penalties charge, is unconstitutionally vague, violates due process, deprives a

defendant of a fair and impartial jury and constitutes an unconstitutional attempt by

the legislature to exercise judicial powers.

       This Court has previously rejected similar challenges to the constitutionality

of Tenn. Code Ann. § 40-35-201(b). State v. Curtis Lee Majors, C.C.A. No. 01C01-

9602-CR-00076 (Tenn. Crim. App. filed July 30, 1997, at Nashville); State v.

Howard E. King, C.C.A. No. 02C01-9601-CR-00032 (Tenn. Crim. App. filed October

22, 1996, at Jackson), perm. to appeal granted (Tenn. March 10, 1997). In State

v. King, this Court found that Farris v. State, 535 S.W.2d 608 (Tenn. 1976), cited by

the defendant in the present case, is inapplicable. In Farris, our Supreme Court

struck as unconstitutional a statute which required that juries be charged on parole

eligibility, good behavior allowances and honor time allowances.             Id. at 614.



                                           13
However, because Farris was decided at a time when sentencing was primarily a

jury function, this Court held that it had no applicability under the current sentencing

laws. State v. King, supra.

       Furthermore, this Court held that Tenn. Code Ann. § 40-35-201(b) is not

impermissibly vague since the jury is provided with an estimated figure “with the

caveat that the actual time served may vary.” State v. Majors, No. 01C01-9602-CR-

00076, slip op. at 14. Due to the necessary overlapping of the branches of state

government, the Court also found that the statute did not violate separation of

powers. Moreover, the Court determined that the statute did not deprive an

accused of due process or a fair and impartial jury.

       We see no reason to deviate from the holdings in these previous cases. This

issue is without merit.



                          NEWLY DISCOVERED EVIDENCE



       In his next assignment of error, defendant contends that the trial court erred

in denying his motion for new trial on the basis of newly discovered evidence. In

preparation for sentencing, the state obtained a copy of the defendant’s juvenile

record.4 Attached to his record were reports from mental evaluations administered

while defendant was a patient at Crockett Academy. Defense counsel then sought

to obtain further records on defendant’s mental health.

       Defense counsel claimed that she originally had suspicions concerning

defendant’s mental health. However, defendant denied that he had undergone any

psychological testing. He also denied having a juvenile record. Therefore, defense

counsel did not pursue this any further.

       The reports5 revealed that defendant had a “borderline” intelligence quotient.



       4
         Defendant does not allege that the state failed to divulge exculpatory evidence. It
appears from the record that the state obtained these reports after the trial had concluded.
       5
          In addition to evaluations at Crockett Academy, the defendant was psychologically
evaluated at Parthenon Pavillion and Vanderbilt University, all of which are Nashville
institutions. All of the mental evaluations were administered when defendant was a juvenile.

                                            14
His I.Q. was in the fifth national percentile for his age group.          A cognitive

assessment indicated that he was functioning at a low level. His linguistic level was

determined to be in the “very poor” range for his age group. He was described as

a “somewhat intellectually and socially limited youngster.”            He was also

characterized as having a need to please others, feelings of inadequacy and low

self-esteem. Defendant contends that these reports are material in that they might

negate the prosecution’s theory at trial, i.e., that the injury was not accidental.

       In seeking a new trial based on newly discovered evidence, there must be

a showing that defendant and his counsel exercised reasonable diligence in

attempting to discover the evidence. State v. Nichols, 877 S.W.2d 722, 737 (Tenn.

1994); State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993). In addition, there

must also be a showing of the materiality of the testimony, and the trial court must

determine whether the result of the trial would likely be changed if the evidence

were produced. Nichols, 877 S.W.2d at 737; Singleton, 853 S.W.2d at 496. The

granting or refusal of a new trial on the basis of newly discovered evidence rests

within the sound discretion of the trial court. State v. Walker, 910 S.W.2d 381, 395

(Tenn. 1995); State v. Goswick, 656 S.W.2d 355, 358 (Tenn. 1983).

       The trial court denied defendant’s motion for new trial on the basis that the

records did not constitute newly discovered evidence in that the defendant had

knowledge of the records prior to trial. Jones v. State, 452 S.W.2d 365 (Tenn. Crim.

App. 1970).

       We find that the trial court did not abuse its discretion in denying the motion

for new trial based upon newly discovered evidence. As the trial court correctly

points out, defendant had knowledge that the records existed prior to trial.

Defendant was untruthful with his counsel regarding prior evaluations. He is entitled

to no relief on this issue.

       Additionally, we find that the evidence was not material and would not have

changed the result of the trial. Although the records reveal that defendant had

various problems, we find none that would absolve him of the offense. In fact, the

reports also indicate that defendant exhibits bad judgment, a tendency to act



                                          15
without thinking and “some lack of control from time to time over his temper.”

       We are not convinced that the evidence was material or would have changed

the result of the trial. Furthermore, the reports are not “newly discovered” as the

defendant had knowledge that they existed prior to trial. This issue is without merit.



                      SUFFICIENCY OF THE INDICTMENT



       In his final two issues, the defendant challenges the sufficiency of the

indictment in two respects. Firstly, he maintains that he was improperly sentenced

to a Class A felony because the indictment did not specifically allege that the victim

was under six (6) years of age. Secondly, he asserts that the indictment was fatally

deficient for failing to allege the requisite mens rea for the charged offense.

Because these issues overlap in some ways, we will consolidate them for review.

       The indictment alleged that:

       [Defendant] on the 4th day of December, 1994, . . . did treat [victim]
       (D.O.B. September 6, 1993), a child under eighteen (18) years of age
       in such a manner as to inflict injury, and the act of abuse resulted in
       serious bodily injury to the child, in violation of Tennessee Code
       Annotated § 39-15-402, and against the peace and dignity of the
       State of Tennessee.

No pre-trial objection was made as to the sufficiency of the indictment.

       An indictment must “state the facts constituting the offense in ordinary and

concise language, without prolixity or repetition, in such a manner as to enable a

person of common understanding to know what is intended.” Tenn. Code Ann. §

40-13-202. “To satisfy our constitutional notice requirements, an indictment . . .

must provide notice of the offense charged, an adequate basis for the entry of a

proper judgment, and suitable protection against double jeopardy.” State v. Trusty,

919 S.W.2d 305, 309 (Tenn. 1996); see also State v. Tate, 912 S.W.2d 785, 789

(Tenn. Crim. App. 1995). “As a general rule, it is sufficient to state the offense

charged in the words of the statute, or words which are equivalent to the words

contained in the statute.” State v. Tate, 912 S.W.2d at 789 (citations omitted). An

indictment which fails to allege the elements of the offense in the terms of the

statute will still be sufficient “if the elements are necessarily implied from the

                                         16
[factual] allegations made.” State v. Marshall, 870 S.W.2d 532, 538 (Tenn. Crim.

App. 1993)(citing Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 419,

76 L.Ed. 861 (1932)).

                        A. Failure to Allege Victim’s Age

       Defendant first contends that the indictment did not sufficiently state the

child’s age, and as a result, he was improperly sentenced for a Class A felony.

Aggravated child abuse is a Class B felony; however, “if the abused child is six (6)

years of age or less, the penalty is a Class A felony.” Tenn. Code Ann. § 39-15-

402(b).

       The indictment specifically alleged that the offense was committed on

December 4, 1994, and the victim was born on September 6, 1993. The child’s age

of approximately fifteen months is “necessarily implied” since the indictment alleges

both the date of the offense and the date of the child’s birth. See State v. Marshall,

870 S.W.2d at 538.

       Defendant’s reliance on State v. Hilliard, 906 S.W.2d 466 (Tenn. Crim. App.

1995), is misplaced. In Hilliard the indictment alleged the defendant unlawfully

possessed cocaine with the intent to sell or deliver. It did not make any reference

whatever to the amount being over 0.5 grams or more which elevates the offense

from a Class C felony to a Class B felony. This Court held that the indictment only

charged a Class C felony in the absence of an allegation as to the amount of

cocaine. 906 S.W.2d at 470.

       In the case sub judice, the indictment itself put the defendant on notice of the

age of the child. Accordingly, Hilliard is distinguishable.

       Moreover, the fact that defendant was to be sentenced for a Class A felony

was not unanticipated. All parties understood that the offense was a Class A felony

before the court charged the jury. Additionally, the jury was instructed with the

range of punishment for a Class A felony. No objections were made. The issue

was first raised after the conclusion of the trial and prior to sentencing. This issue




                                          17
is without merit.6

                            B. Failure to Allege Mens Rea

       Defendant finally contends that the indictment is insufficient in that it fails to

state that he acted “knowingly.” He argues that the mens rea is an essential

element of the charged offense. Therefore, because the indictment failed to allege

an essential element of the offense, no offense has been charged, and any further

proceedings are a nullity. As previously stated, no pre-trial objection was made

relating to the sufficiency of the indictment.

       Firstly, we conclude the element of “knowingly” was necessarily implied from

the language in the indictment. See State v. Marshall, 870 S.W.2d 532, 538 (Tenn.

Crim. App. 1993). Although the indictment omitted the term “knowingly,” it did

allege that “the act of abuse resulted in serious bodily injury to the child.” A person

of common understanding would certainly conclude that “abuse” to a child implies

“knowing” misconduct.7

       Secondly, we believe this interpretation is consistent with State v. Hill,

S.W.2d           (Tenn. 1997). Although Hill concerned a statute which neither

expressly required nor plainly dispensed with the requirement for a culpable mental

state, we believe its rationale is equally applicable to the case at bar.               This

defendant certainly had adequate notice of the charge of aggravated child abuse;



       6
        We certainly empathize with the following comments of the trial judge who, when
deciding to take this issue under advisement for several days, remarked:

       I want to go ahead and resolve this case today, but I do not want to do it if
       I’m going to have somebody who has months and months to look over all
       these things and study them and analyze them and have clerks run around
       doing things, come along and tell me to conduct this hearing again. . . I’m
       going to reset this case to complete the Sentencing Hearing.

We agree that the trial court has a much more difficult task in resolving these issues in the
“heat of battle” than we do upon deliberate reflection.
       7
         Our Court has previously held that the culpable mental state of “intentional” is
implied by the use of the term “sexual contact” in the indictment. Because the definition of
“sexual contact” requires that a touching be “intentional,” the mental state is thereby
contained in the indictment. See State v. John Claude Wells, III, C.C.A. No. 01C01-9505-
CR-00146, Davidson County (Tenn. Crim. App. filed June 6, 1997, at Nashville); State v.
Milton S. Jones, Jr., C.C.A. No. 02C01-9503-CR-00061, Shelby County (Tenn. Crim. App.
filed March 7, 1997, at Jackson). We find this reasoning to be closely analogous to an
indictment containing the term “abuse.”

                                             18
there was an adequate basis for entry of a proper judgment; defendant has full

double jeopardy protection; the indictment complied with Tenn. Code Ann. § 40-13-

202 in that it stated facts in ordinary and concise language so that a person of

common understanding would know the intended charge; and the mental state of

“knowingly” could be logically inferred from the use of the word “abuse.”

       Finally, we note this issue was raised for the first time on appeal. We adopt

the concurring opinion of Judge Hayes in State v. Larry Steve Wilson, C.C.A. No.

03C01-9511-CC-00355, Blount County (Tenn. Crim. App. filed March 25, 1997, at

Knoxville), and agree that a more liberal rule of construction of indictments is

appropriate in the case of late-filed objections. Otherwise, there would be an

incentive for a defendant to “sandbag.” See LaFave and Israel, Criminal Procedure

§ 19.3. In this case the indictment fairly gives notice that “abuse” is charged and

necessarily implies it to be “knowingly” inflicted. Furthermore, there has been

absolutely no showing of prejudice by the absence of the word “knowingly.” The

indictment is sufficient.




                                        19
                              CONCLUSION



     Based upon the foregoing, we AFFIRM the judgment of the trial court.




                                            JOE G. RILEY, JUDGE



CONCUR:




CURWOOD WITT, JUDGE




JOE H. WALKER, III, SPECIAL JUDGE




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