         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      May 17, 2005 Session

                STATE OF TENNESSEE v. DEBRA ELAINE KIRK

                   Direct Appeal from the Criminal Court for Cocke County
                            No. 9080    Ben W. Hooper, II, Judge



                   No. E2004-01263-CCA-R3-CD - Filed September 30, 2005


Defendant, Debra Elaine Kirk was indicted on one count of aggravated child abuse and one count
of felony murder. Following a jury trial, Defendant was convicted of aggravated child abuse of a
child less than six years old, a Class A felony, and criminally negligent homicide, a Class E felony,
and lesser included offense of felony murder. Following a sentencing hearing, the trial court
sentenced Defendant as a Range I standard offender to twenty-five years for the aggravated child
abuse conviction and two years for the criminally negligent homicide conviction. The trial court
ordered Defendant to serve her sentences concurrently. In this appeal, Defendant argues (1) that the
length of sentence imposed for her aggravated child abuse conviction violated the principles set forth
in the recent United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004); (2) that the trial court erred in denying Defendant’s motion
to suppress her statement and in allowing Defendant’s statement to be introduced into evidence; (3)
that the trial court erred in allowing the admission of evidence of Defendant’s prior drug use; (4) that
the trial court erred in allowing Dr. Darinka Mileusnic to testify about certain toxicology test results;
and (5) that the jury’s verdicts were inconsistent. Because we determine that reversible error
occurred in the trial court’s admission of evidence at trial of Defendant’s prior drug use, we reverse
the judgments of the trial court and remand for a new trial.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Edward Cantrell Miller, District Public Defender, and Keith A. Haas, Assistant Public Defender,
Newport, Tennessee (at trial), for the appellant, Debra Elaine Kirk.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; James Bruce Dunn, Assistant District Attorney, for the
appellee, the State of Tennessee.
                                              OPINION

I. Background

        Wayne Trentham, a paramedic for Cocke County, testified that he responded to a 911 call
on July 22, 2002. As the ambulance approached the residence where the call originated at
approximately 9:43 a.m., a man, later identified as Defendant’s husband, Lacie Kirk, II, ran out of
the house carrying a baby in his arms. The baby was Lacie Kirk, III, the four-month old son of Mr.
Kirk and Defendant. Mr. Kirk handed the victim to Mr. Trentham and told him the victim was not
breathing. Mr. Trentham performed mouth-to-mouth resuscitation on the victim and then switched
to an infant bag for ventilation. Mr. Trentham said that the victim did not have a pulse, but he was
still warm to the touch with no sign of rigor mortis. The ambulance arrived at the Cocke County
Baptist Hospital at 10:17 a.m.

       Derrick Woods, a detective with the Cocke County Sheriff’s Department, said that he was
present at the Cocke County Baptist Hospital when the ambulance arrived with the victim. The
victim was transferred to the Johnson City Medical Center. Detective Woods said that he read
Defendant her Miranda warnings at the medical center, and Defendant told him that she did not
know what happened to her son. The victim died on July 24, 2002.

        Detective Woods said that he and Detective David Slagle interviewed Defendant again on
March 6, 2003, beginning at 10:52 a.m. Detective Woods read Defendant her Miranda rights.
Defendant indicated that she understood her rights and executed a written waiver. In her first
statement, Defendant admitted that she had used cocaine during the three days prior to July 22, 2002,
but she denied that she gave the victim any drugs, specifically Oxycontin. Defendant said that she
bought $30 worth of Oxycontin from her brother-in-law during the early morning hours of July 22,
2002 to help her sleep. She later woke up when her husband yelled at her to call 911 because the
victim was not breathing.

        Detective Woods said that he finished recording Defendant’s first statement at 3:11 p.m., and
they took a break until 4:39 p.m. Detective Woods said that before the questioning resumed, he
again read Defendant her Miranda rights, and Defendant signed a second waiver of those rights.
During the course of this interview, Defendant admitted that she had given the victim Oxycontin.

       Defendant’s statement was read to the jury. Defendant stated that she bought some
Oxycontin pills from Billy Farmer, her brother-in-law, in the early morning hours of July 22, 2002.
Her husband crushed the pills into dust and crumbs on top of the washing machine on two different
occasions. After the second occasion, the victim woke up. In her written statement, Defendant
described the next events as follows:

       [T]he baby had spit it’s [sic] [pacifier] out. I tried to put it back in. I tried bouncing
       him, walking him around, patting him on his back but he would not go back to sleep.
       I then took his [pacifier] into the bathroom, where the Oxycontin was crushed. The


                                                  -2-
       dust was crumbs, not much there to even snort a line. The [pacifier] was wet from
       the baby. I stuck [it] in the dust and crumbs, then put the [pacifier] back into the
       babies [sic] mouth. Lacie was in [the] kitchen making a bottle, while the baby was
       laying on its pallet after I give it [sic] the [pacifier] with the [pacifier] having a light
       powder on it where I stuck it in the Oxycontin on the washing machine. By the time
       Lacie got done making his bottle, the baby was already asleep. I was patting his back
       laying beside him. Then Lacie came to bed on the floor and got between me and the
       baby. Then we all went to sleep. I woke up the following morning. Lacie was
       screaming call 911, that the baby [was not] breathing. That’s when I call[ed] 911.
       Lacie was trying to get the baby breathing, and he would not breath. Then the
       ambulance came. This is the truth and what actually happened. I did not hurt my
       baby on purpose. I have never give [sic] any of my kids drugs before. I have never
       seen Lacie or has he told me he has [given] my children anything. The whole time
       I was pregnant I used Oxycontin, when pregnant with Lacie the third. I am addicted
       [to] Oxycontin. I would say I’m addicted to cocaine. I prefer Oxycontin over
       cocaine.

       On cross-examination, Detective Woods said that he finished recording Defendant’s
statement at 8:44 p.m. He said that Defendant did not begin to change her previous statement until
between 7:00 p.m. and 7:30 p.m. Detective Woods said that Defendant asked to call her mother
during the first interview so that her mother could contact an attorney. Detective Woods told
Defendant that she could not call her mother, but that she could call an attorney.

         Detective Woods said that they took an hour and half break after Defendant asked permission
to call her mother. Detective Woods said that he was personally acquainted with Defendant and her
family. He acknowledged that he told Defendant on one occasion that if she wanted his help,
Defendant would have to tell the truth. Detective Woods said that Defendant changed her story at
some point after he made that statement.

        Detective Woods said that he investigated the residence of Billy and Elizabeth Farmer, where
the Kirks were staying on the night of the offense. He did not retrieve the victim’s pacifier on July
22 or July 23, 2002. Detective Woods said that Mr. Kirk, in his July 22, 2002 statement, said that
he woke up to find the victim laying with his face on a piece of plastic. Detective Woods said that
the Farmer’s living room had been cleaned by the time he visited their home, and he did not see any
plastic bags.

        Darinka Mileusnic, a forensic pathologist with the Knox County Medical Examiners Office,
said that she performed an autopsy on the victim on July 25, 2002. Dr. Mileusnic said that the victim
weighed 12.5 pounds at death and that the victim was well developed considering the fact that he
had been born prematurely.

       Dr. Mileusnic testified that the autopsy revealed severe changes in the victim’s brain and
kidneys which appeared to be caused by a toxic substance. Whatever toxic substance was in the


                                                   -3-
victim’s system, however, had dissipated while he was hospitalized, and Dr. Mileusnic was unable
to detect toxic substances in either the victim’s body fluids or his tissues.

         Dr. Mileusnic requested a sample of the victim’s blood which had been drawn upon his
arrival at the hospital in order to get a more accurate reflection of what was in the victim’s system
at the time he was discovered to be unresponsive. Dr. Mileusnic said that the victim’s cause of death
was initially listed as “undetermined” pending the development of further information. Dr.
Mileusnic stated that the changes in the victim’s brain and kidneys, however, did eliminate sudden
infant’s death syndrome as a cause of death.

         Dr. Mileusnic forwarded the sample of the victim’s blood for testing to Dr. Christopher Long,
a chemist with St. Louis University Forensic Toxicology. The first test performed on the sample
detected the presence of oxycodone in the victim’s blood. Dr. Mileusnic said that Oxycontin was
the registered name for oxycodone. The victim’s blood sample, however, was insufficient to
perform the second test usually performed when oxycodone is the suspected toxic substance. As a
result, the overall test results reflected a “negative” finding for oxycodone. In a letter dated March
25, 2003, Dr. Long explained to Dr. Mileusnic that the second test did not detect oxycodone “most
reasonably due to the dilution effect as [he] had very little sample to analyze.” Dr. Long stated in
his letter that “[i]f the drug does not meet acceptable criteria, then we must report it as negative.”
Dr. Long confirmed during a telephone conversation with Dr. Mileusnic that the first test showed
the presence of oxycodone in the victim’s blood.

         Based on Dr. Long’s finding of the presence of oxycodone in the victim’s blood during the
first test, the autopsy findings reflecting toxic renal and brain damage, and Defendant’s confession,
Dr. Mileusnic amended her autopsy report to reflect that the cause of the victim’s death was
oxycodone toxicity.

        On cross-examination, Dr. Mileusnic said that effects of Oxycontin would be immediate on
an infant like the victim. Dr. Mileusnic said that she did find edema fluid in the victim’s lungs, but
said that edema fluid was frequently present after hospitalization. Dr. Mileusnic said that Oxycontin
could be passed on to a fetus if the drug is taken during pregnancy, but the drug would be dispersed
throughout the fetus’ body and would not cause the kidney damage observed in the victim.

        The defense then presented its proof. Doris Smith, Defendant’s grandmother, testified that
a similar incident occurred when the victim was two months old. The victim was in Mr. Kirk’s care
while Defendant was at work. Ms. Smith drove up to Defendant’s residence, and Mr. Kirk ran
outside carrying the victim. Mr. Kirk told Ms. Smith the baby was not breathing, and Ms. Smith
called 911. The baby was breathing, however when the paramedics arrived. On cross-examination,
Ms. Smith admitted that she told Detective Woods that Defendant used Oxycontin.

        Defendant testified that the victim was born on March 18, 2002, but was not discharged from
the hospital until April 11, 2002, because he was born prematurely. Defendant said that Mr. Kirk
did not work, and she and Mr. Kirk were experiencing marital difficulties. Defendant said that she


                                                 -4-
left for work on July 22, 2002, around 3:00 p.m. Mr. Kirk, with the victim, picked her up when her
shift ended at 1:00 a.m. Defendant said that they drove to the residence of Billy and Elizabeth
Farmer. Mrs. Farmer was Mr. Kirk’s sister. They decided to spend the night because it was so late.
Mr. Kirk put some blankets and two pillows on the floor. Defendant said she fed the victim, and he
went to sleep.

        Mr. Kirk told Defendant to purchase some Oxycontin pills from Mr. Farmer. When
Defendant returned, both she and Mr. Kirk ingested the drugs, and then went to sleep. Defendant
said she woke up the next morning when Mr. Kirk yelled for her to call 911 because the victim was
not breathing. Defendant called 911 while Mr. Kirk attempted to resuscitate the victim. Defendant
wanted to ride to the hospital in the ambulance, but the paramedics would not let her. Defendant
said that she did not give any drugs to the victim, but she did not know if Mr. Kirk did.

       Defendant said she told Detective Woods during the interview on March 6, 2003, that she
wanted to call her mother so that her mother could contact an attorney. She said that Detective
Woods told her she could make the telephone call “as soon as he was done.” Defendant said,
however, that Detective Woods did not give her the opportunity to use the telephone during their
break. Defendant said that she knew and trusted Detective Woods. Defendant said that she only told
Detective Woods that she had given the victim Oxycontin because he told her that he would see that
the charges were dropped or reduced if she admitted that she had done so.

        On cross-examination, Defendant said that her first statement on March 6, 2002, was true,
not her second statement. She said that she used Oxycontin to help if her sleep or to “hype” herself
up if she was not tired, and she admitted that she used Oxycontin in the early morning hours of July
22, 2002. Defendant admitted that she laughed after giving her second statement, but she said that
she did not know that the interview was being videotaped.

II. Motion to Suppress

        Defendant argues that the trial court erred in denying her motion to suppress her statement
to Detectives Wood and Slagle. Defendant contends that the investigating detectives failed to cease
questioning her after she made an unequivocal request for an attorney, and that her statement was
the result of the detectives’ coercive tactics which overcame her will to resist.

        At the suppression hearing, Detective Slagle testified that he videotaped Defendant’s
interview. He was not aware, however, that the tape had run out on several occasions, and there
were portions of the interview that were not preserved on tape, including Defendant’s request to call
her mother. Defendant was read her Miranda rights and signed a written waiver before her first
interview. The first interview with Defendant began at 10:52 a.m. and ended at 3:20 p.m. Defendant
denied giving the victim drugs, and then agreed to take a polygraph test. They took a break from
3:20 p.m. to 4:30 p.m. Defendant was read her Miranda rights again, signed a second waiver form,
and Detective Slagle administered the polygraph test. Detective Slagle scored the polygraph charts
and told Defendant at approximately 6:00 p.m. that it appeared she had not been truthful in some of


                                                -5-
her responses. Defendant asked to speak with Detective Woods alone at approximately 7:30 p.m.
Detective Slagle rejoined the interview shortly thereafter, and Defendant admitted that she had given
the victim Oxycontin on July 22, 2002.

        Detective Woods testified that Defendant in her initial statement denied giving the victim
drugs. Detective Woods asked Defendant if she wanted to take the polygraph test. Defendant asked
if she could call her mother so that her mother could contact an attorney. Detective Woods told
Defendant she could call an attorney, but not her mother. Defendant said that she wanted to take the
polygraph test to prove she was telling the truth. Detective Woods said that he decided to take a
break at this point. He resumed the interview in approximately ninety minutes. Detective Woods
asked Defendant if she was sure she wanted to take the polygraph test. Defendant said that she did,
and Detective Woods read the Miranda rights to her again. Detective Woods said that Defendant
did not ask to use the telephone again.

        Defendant testified that she was in custody for violation of probation at the time she gave her
statement. Defendant said that she was returned to a holding cell while the detectives ate lunch, and
the jailer would not let her use the telephone. Defendant said that she wanted to call her mother
during the interview because she did not “know any attorneys in Cocke County that would represent
somebody.” Defendant said that she had never been in a situation before in which she needed an
attorney. Defendant said that Detective Woods told her that she could use the telephone “in a little
while,” but never gave her the opportunity to do so. Defendant said that she did not remember that
Detective Woods told her she could call an attorney.

        Defendant said that she was held in the “drunk tank” for three days on suicide watch after
the interview, and she was not allowed to use the telephone during this time. Defendant said that
she was permitted to call her mother on the third day to tell her that she was all right.

        On cross-examination, Defendant said that she had previously contacted David Hill, a local
attorney, to represent her in a potential custody lawsuit. However, Defendant said that she never
retained Mr. Hill to represent her. Defendant admitted that her mother visited her at jail during the
three days following the interview.

        At the conclusion of the suppression hearing, the trial court found that Defendant was less
than credible during her testimony. The trial court found that Defendant asked to call her mother,
not an attorney, and then withdrew her request to use the telephone because she wanted to go ahead
and take the polygraph test. Based on the totality of the circumstances, the trial court found that
there was no evidence that Defendant did not want to talk to the detectives, and no evidence of any
oppression or force during the interview.

                                       A. Standard of Review

        At a suppression hearing, the State has the burden of demonstrating by a preponderance of
the evidence that the defendant’s statement was voluntary, knowing and intelligent. State v. Kelly,


                                                 -6-
603 S.W.2d 726, 728 (Tenn. 1980). A trial court’s determination at a suppression hearing is
presumptively correct, and the findings are binding on this Court unless the evidence in the record
preponderates against them. State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996).

        Matters regarding the credibility of witnesses, the weight and value to be afforded the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial court. Id., 928
S.W.2d at 23. Thus, on appeal, the defendant has the burden of showing that the evidence
preponderates against a finding that a confession was, in fact, knowingly and voluntarily given. State
v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984). In determining whether a statement is made voluntarily,
this Court must look to the totality of the circumstances surrounding the confession, and the standard
is whether “the behavior of the State’s law enforcement officials was such as to overbear the
[defendant’s] will to resist and bring about confessions not freely determined.” Kelly, 603 S.W.2d
at 728.

                                      B. Request for an Attorney

         Defendant argues that her statement should be suppressed because the interviewing detectives
failed to cease questioning her after she made an unequivocal request for an attorney. Encompassed
with the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee
Constitution “is the right to counsel, which is applicable whenever a suspect requests that counsel
be present during police-initiated custodial interrogation.” State v. Saylor, 117 S.W.3d 239, 244
(Tenn. 2003). If a defendant makes an unequivocal request for counsel while being given his or her
Miranda warning or during the custodial interrogation, the interrogation must cease until counsel is
present. Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883-84, 68 L. Ed. 2d 378
(1981); Saylor, 117 S.W.3d at 244. An invocation of the right to counsel, however, “‘requires at a
minimum, some statement that can reasonably be construed to be an expression of a desire for the
assistance of an attorney.’” Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129
L. Ed. 2d 362 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209, 115
L. Ed. 2d 158 (1991)). “If the suspect fails to make such an unambiguous statement, police may
continue to question [the suspect] without clarifying any equivocal requests for counsel.” Saylor,
117 S.W.3d at 246 (citing State v. Huddleston, 924 S.W.2d 666, 670 (Tenn. 1996)). Whether the
defendant did or did not make an unequivocal request for counsel is a question of fact. State v.
Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996).

        Based upon the evidence presented at the evidentiary hearing, the trial court, accrediting the
testimony of Detective Woods, found that Defendant neither invoked her Fifth Amendment right to
counsel, nor was prevented from doing so. The trial court noted that although Defendant said that
she did not know any attorneys whom she could call, Defendant had previously contacted an attorney
about an unrelated matter. Defendant was read her Miranda rights twice, including her right to
request counsel, and Defendant said that she understood and waived those rights. The trial court is
in the best position to determine the credibility of witnesses, and great weight is attributed to the trial
court’s determination. Saylor, 117 S.W.3d at 577 (citing Odom, 928 S.W.2d at 23). Defendant is
not entitled to relief on this issue.


                                                   -7-
                                       C. Force or Oppression

          The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.” U. S. Const. amend. V. The
corresponding provision of the Tennessee Constitution states “[t]hat in all criminal prosecutions, the
accused shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. Our
Supreme Court has previously concluded that “the test of voluntariness for confessions under Article
1, § 9 is broader and more protective of individual rights than the test of voluntariness under the Fifth
Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

          Relying on State v. Phillips, 30 S.W.3d 372 (Tenn. Crim. App. 2000), Defendant argues that
her statement was involuntarily given because of the coercive tactics of the investigating detectives.
Specifically, Defendant contends that the interrogation lasted over eight hours, and she was given
little to eat or drink during this time. Defendant argues that the detectives made repeated promises
of leniency if she would tell them “the truth,” despite her steadfast denial of wrongdoing.

       “[I]n order for a confession to be admissible, it must be ‘free and voluntary; that is, must not
be extracted by any sort of threats or violence, nor obtained by any direct or implied promises,
however, slight, nor by the exertion of any improper influence . . .’” State v. Smith, 933 S.W.2d at
455 (Tenn. 1996)(quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187, 42 L.
Ed. 2d 568 (1897)). In Tennessee,

        promises of leniency by state officers do not render subsequent confessions
        involuntary per se: ‘The Fifth Amendment does not condemn all promise-induced
        admissions and confessions; it condemns only those which are compelled by
        promises of leniency.’” Smith, 933 S.W.2d at 455 (quoting [State v.] Kelly, 603
        S.W.2d [726, 729 (Tenn. 1980)](quoting Hunter v. Swenson, 372 F. Supp. 287, 300-
        01 (D.C. Mo. 1974)(emphasis added)). The critical question is “‘whether the
        behavior of the state’s law enforcement officials was such as to overbear [the
        defendant’s] will to resist and bring about confessions not freely self determined. .
        . .’” Id. at 728 (quoting Rogers [v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741,
        5 L. Ed. 2d 760 (1961)).

Smith, 933 S.W.2d at 455-56.

        In Phillips, this Court found that the line of questions employed by the investigators
impermissibly “crossed the line” based on the presence in the record of “(1) misrepresentations by
an investigator; (2) numerous steadfast denials by the defendant; (3) statements that law enforcement
officials would be involved if defendant did not confess; and (4) promises of treatment for the
defendant [who faced charges of sexual misconduct] and his stepdaughter only if he fully confessed.”
Phillips, 30 S.W.3d at 377.




                                                  -8-
        First, we note that the defendant in Phillips, unlike the case sub judice, was in a non-custodial
situation which did not require the provision of Miranda warnings when he made his statement. See
id. at 376. Defendant does not factually dispute Detective Woods’ testimony that Defendant was
read her Miranda warning before the commencement of the first interview and again before she took
the polygraph test, that she appeared to understand her rights, and that she executed written waivers
of her Miranda rights on both occasions.

         As to the environment surrounding the interview, Defendant said she woke up shortly before
the first interview which started at 10:52 a.m. Although the entire interview process lasted until
approximately 8:44 p.m., there was a ninety-minute break before Defendant took the polygraph test
at 4:30 p.m. Detective Woods said that Defendant never asked to stop the interview. At some point,
Detective Woods told Defendant that if she wanted his help, she would have to be truthful.
Detective Woods said that he knew Defendant and her family, and they discussed various issues
concerning Defendant’s family at the end of the interview, and the two of them laughed over some
of the topics. Based on our review of the record, we find that the evidence does not preponderate
against the trial court’s finding that Defendant was not coerced into making her statement.
Defendant is not entitled to relief on this issue.

III. Prior Bad Acts

       Defendant argues that the trial court erred in admitting portions of Defendants’ statements
which referenced her use of cocaine during the three days immediately preceding the victim’s death.
Defendant contends such evidence was not relevant to any issue at trial and was highly prejudicial.
Without being more specific, the State argues that Defendant’s admissions that she used cocaine use
was relevant and therefore admissible evidence.

        Defendant gave three statements to the investigating officers concerning the sequence of
events leading up to the victim’s death, and all three statements were admitted into evidence.
Defendant’s first statement was made at the Johnson City Medical Center on July 22, 2002, before
the victim died. Defendant told Detective Woods that her husband picked her up from work at 12:30
a.m. on July 22, 2002. The victim was asleep in his car seat. Defendant, Mr. Kirk, and the victim
spent the night at the Farmer’s residence. Defendant fed the victim and laid him down on a pallet on
the floor. The victim fell asleep, and Defendant was awakened the next morning by Mr. Kirk’s
screams to call 911 because the victim was not breathing. Defendant did not mention using either
cocaine or Oxycontin.

        Defendant’s second statement was given during the afternoon of March 6, 2003. This
statement is a rambling, detailed six-page description of the sequence of events occurring between
Thursday, July 19, 2002, and Sunday, July 22, 2002. Defendant and Mr. Kirk spent the three days
essentially shopping, eating out, and using cocaine. The victim was staying with a babysitter for a
portion of this time. During the remainder of the time, Defendant and Mr. Kirk used cocaine while
the victim napped, or they took turns watching the baby and taking drugs. To give a flavor of



                                                  -9-
Defendant’s statement, the following is her description of how she and Mr. Kirk spent Friday
afternoon and night, after Defendant picked the victim up from the babysitter’s house:

       We then went and ate at Family Farm Restaurant with the baby. [Mr. Kirk] wanted
       another eight ball [of] cocaine, so we went [and] found that same girl. We really
       both wanted the cocaine. . . . [Mr. Kirk] went [and used] cocaine while I stayed in my
       car. Then [Mr. Kirk] came back and I went [and used] cocaine while [Mr. Kirk] kept
       the baby. We went and got [a] motel room at Family Inn. . . . We stayed there for
       about an hour and done [sic] some cocaine and played with the baby. I told [Mr.
       Kirk] I wanted to go to Morristown and buy the baby some clothes. We went to [the]
       mall, then went to eat, then rode around [and] stopped at the Dollar Store and bought
       the baby some clothes and spoiled him. We headed back to Newport and went to
       [the] motel room. Me and [Mr. Kirk] done [sic] the rest of the cocaine while the
       baby was asleep on the bed. I decided, we decided, to get another ball [of] cocaine
       because Cindy came over to the motel. [Mr. Kirk] and Cindy were drinking beer.
       Lacie, the baby, was asleep on the bed. Me, [Mr. Kirk] and Cindy were doing the
       cocaine.

         Defendant and Mr. Kirk continued using cocaine throughout the day on Saturday. Defendant
also said that on Saturday afternoon, she bought one Oxycontin pill from Mr. Farmer which she
crushed and ingested before going to work. Mr. Kirk and the victim picked Defendant up from work
around 1:00 a.m. on Sunday. Defendant said that she fed the baby, and then bought one Oxycontin
pill from Mr. Farmer because she was tired, and Oxycontin made her sleepy. Mr. Kirk crushed the
pill up in the bathroom, and both of them “snorted” the drug. When she woke up the next morning,
the victim was not breathing.

        In her third statement, Defendant eliminated the description of her activities during the three
days prior to Sunday, July 22, 2002. She did not mention using cocaine in this statement, except that
she admitted that she “prefer[red] Oxycontin over cocaine.”

        Defense counsel filed two motions in limine prior to trial seeking to prevent the State from
introducing into evidence “any reference of mention of the Defendant’s first child, Adrianna, and/or
her manner of death,” and “evidence of the Defendant’s prior bad acts, conduct, character or
reputation.”

       The State offered the first statement Defendant made on March 6, 2002, as an exhibit during
Detective Woods’ direct examination. Defense counsel objected, and, during a hearing out of the
presence of the jury, asked the trial court to redact any references in the statement to the previous
death of Defendant’s older daughter. In her second statement, Defendant explained that she and Mr.
Kirk picked up a settlement check in the amount of $55,000.00 from their insurance company on
Thursday, July 19, 2002. The check was issued in response to a claim the Kirks filed as a result of
the drowning death of their oldest child, Adrianna, a few months before the victim’s death. The



                                                 -10-
references to Defendant’s older child and the insurance proceeds in Defendant’s statement were
redacted prior to introduction.

       The State continued with its direct examination as follows:

       [THE STATE]:                  I forget exactly where I was but the question is, did
                                     [Defendant] admit to you to snorting cocaine?

       [DETECTIVE WOODS]:            Yes, sir.

       [THE STATE]:                  Was it on more than one occasion?

       Defense counsel interposed an objection, and the trial court conducted a bench
       conference outside the hearing, but within the presence, of the jury.

       [DEFENSE COUNSEL]:            In the [second] statement she talks about cocaine, and
                                     in the [third] she talks about Oxycontin, that’s the
                                     only thing I’m trying to point out.

       [THE STATE]:                  One of them’s got to be known. It’s not both of them,
                                     but one of them’s got to be heard. I’m not trying to
                                     make her out to be a dope addict, but I mean that’s
                                     what she told the officer.

       [DEFENSE COUNSEL]:            What they’re trying to put into this statement is things
                                     that she did prior to the day in question.

       [THE COURT]:                  If this were some piece of evidence outside of the
                                     statement I would sustain the objection, but the fact
                                     that it’s an admission on her part . . . I’m going to
                                     overrule the objection that it’s . . . It’s just simply a
                                     part of her admission and, of course, it’s not going to
                                     make a whole lot of difference whether it was cocaine
                                     of Oxycontin. I mean, you know, it kind of clears the
                                     air I guess as to what they were doing. (emphasis
                                     added).

       [DEFENSE COUNSEL]:            Part of the objection was that this was done before the
                                     child was actually found not to be breathing, it was
                                     not the day in question.

       [THE STATE]:                  It’s still her statement, her admission.



                                                 -11-
       [THE COURT]:                    I’m not sure that there’s . . . My thinking is that it is in
                                       her admission as to part of her statement, that it’s not
                                       some outside piece of evidence and then for that
                                       reason it is admissible. But why don’t you go ahead
                                       and clear it up that it was a couple of days before.

       Detective Woods’ direct examination was resumed, and the State asked, “And did
       the defendant tell you that she had used cocaine a couple of days prior to the 22nd.”

       [THE COURT]:                    Let me interrupt at this point and maybe tell the jury,
                                       that admission was in the statement that she gave but
                                       the evidence certainly is somewhat removed from the
                                       real issue in this case. This defendant shouldn’t be
                                       convicted because she used cocaine two days earlier,
                                       I guess is the simplest way for me to put it. It’s there
                                       and for that reason I’ve let it in, but I don’t want you
                                       to give any undue weight to that. And you may
                                       continue. (emphasis added).

        It appears that the trial court concluded that Defendant’s numerous admissions of cocaine use
were admissible because they were contained within her second statement which itself was
admissible under Rule 803(1.2) of the Tennessee Rules of Evidence. The trial court, therefore, did
not follow the statutory procedures governing the admission of evidence of other prior bad acts set
forth in Rule 404(b) of the Tennessee Rules of Evidence. Nor did the trial court, other than a
comment that the admission “clears the air,” rule on the relevancy of the proffered evidence.

        Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with the character trait.” In order for
such evidence to be admitted, Rule 404(b) requires that the following procedures occur:

       (1) The court upon request must hold a hearing outside the jury’s presence.

       (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record, the
       material issue, the ruling, and the reasons for admitting the evidence;

       (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and

       (4) The court must exclude the evidence if its probative value is outweighed by the
       danger of unfair prejudice.




                                                 -12-
Tenn. R. Evid. 404(b). “Evidence of a criminal defendant’s character may become admissible when
it logically tends to prove material issues which fall into one of three categories: (1) the use of
‘motive and common scheme or plan’ to establish identity; (2) to establish the defendant’s intent in
committing the offense at trial; and (3) to ‘rebut a claim of mistake or accident if asserted as a
defense.” State v. Thacker, 164 S.W.3d 208, 239-240 (Tenn. 2005) (quoting State v. McCary, 922
S.W.2d511, 514 (Tenn. 1996)).

        Defendant’s admission to Detective Woods that she used cocaine during the weekend
constitutes evidence of another crime subject to Rule 404(b) scrutiny. See State v. Louellen, 867
S.W.2d 736, 740 (Tenn. Crim. App. 1992). The fact that the prior bad acts evidence is contained
within a defendant’s statement to the police concerning the offense at trial does not relieve the trial
court of the duty to conduct a Rule 404(b) hearing to determine the admissibility of the admissions.
See, e.g., Thacker, 164 S.W.3d at 238-241 (Conducting a Rule 404(b) analysis in light of the
defendant’s references to other crimes in his statement to the police concerning the current charges.)

         A trial court’s decision to admit evidence based upon relevancy under Rules 401 and 402 of
the Tennessee Rules of Evidence will not be disturbed on appeal absent an abuse of discretion. State
v. Gilliland, 22 S.W.3d 266, 277 (Tenn. 2000). If the relevancy of the proffered evidence is subject
to analysis under Rule 404(b), however, our standard of review is based on an abuse of discretion
only if the trial court substantially complies with the rule’s procedural requirements. State v.
Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). It appears that the trial court in the instant case did not
consider the admissibility of Defendant’s admission of using cocaine as a Rule 404(b) issue, and thus
did not follow any of the rule’s procedural requirements. If a trial court does not substantially
comply with the procedural requirements of Rule 404(b), then no deference is given to the trial
court’s decision. Id.

        The State offers no indication in its brief as to how Defendant’s use of cocaine prior to the
date of the offense was relevant to a litigated issue other than to show Defendant’s character.
Defendant did not dispute at trial that she used Oxycontin and cocaine, or that she used the drugs
while the victim was under her care. At trial, Defendant admitted that she bought and used
Oxycontin during the early morning hours of July 22, 2002 while the victim was in the house.
Defendant denied, however, that she gave the victim Oxycontin, and thus did not attempt to explain
or mitigate her responsibility by claiming that the victim’s ingestion of Oxycontin was an accident
or mistake. Defendant’s defense was based on the contention that Mr. Kirk had given Oxycontin
to the victim. Furthermore, the trial court acknowledged, in its instruction to the jury, that the
evidence was “somewhat removed from the real issue in this case.”

        “The general rule excluding evidence of other crimes is based on the recognition that such
evidence easily results in a jury improperly convicting a defendant for his or her bad character or
apparent propensity or disposition to commit a crime regardless of the strength of the evidence
concerning the offense at trial. Such a potential particularly exists when the conduct or acts are
similar to the crime at trial.” State v. Richardson, 876 S.W.2d 824, 828 (Tenn. Crim. App.
1994)(citations omitted).


                                                 -13-
        Defendant’s references to cocaine use on Thursday and Friday could have easily been
redacted from Defendant’s statement. To say that Defendant’s lifestyle was “unwholesome” or her
parenting skills questionable “would be excessively charitable.” See State v. Bordis, 905 S.W.2d
214, 232 (Tenn. Crim. App. 1995). However, “a jury cannot be allowed to convict a defendant for
bad character or any particular ‘disposition to commit a crime regardless of the strength of the
evidence concerning the offense on trial.” Id. (quoting State v. Rickman, 876 S.W.2d 824, 828
(Tenn. 1994)). We fail to discern how Defendant’s admission that she used cocaine in the days prior
to the victim falling ill was relevant to a material issue at trial. Based on the foregoing, we conclude
that the trial court erred in admitting the evidence of Defendant’s use of cocaine during the two days
prior to the commission of the offense, and, under the facts of this case, the error was not harmless.
Accordingly, we reverse Defendant’s convictions for criminally negligent homicide and aggravated
child abuse.

      In the event of further review, and for guidance in the event of a new trial, we will address
Defendant’s remaining issues.

IV. Expert Testimony

         Defendant argued that the trial court erred in allowing Dr. Mileusnic to give her opinion in
the area of toxicology when she was only qualified as an expert in the area of forensic pathology.
Initially, we note that Defendant does not cite any authority in support of his contention that Dr.
Mileusnic was permitted to testify outside her field of expertise. “Issues which are not supported
by argument, citation to authorities or appropriate references to the record will be treated as waived
in this court.” Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). Nonetheless, we
will consider the merits of Defendant’s issue.

         It is well established that “questions concerning the qualifications, admissibility, relevancy,
and competency of expert testimony are matters left within the broad discretion of the trial court.”
State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002); State v. Ballard, 855 S.W.2d 557, 562 (Tenn.
1993). A witness who is qualified as an expert in a particular field may testify in the form of an
opinion if the scientific, technical or other specialized knowledge of the witness will substantially
assist the trier of fact in understanding evidence or determining a fact at issue. Tenn. R. Evid. 702;
see McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). In addition, the evidence offered
through the expert must be relevant to a fact at issue in the case. Tenn. R. Evid. 401, 402. A trial
court’s ruling will not be overturned on appeal unless the reviewing court finds that the trial court
abused its discretion in admitting or excluding the expert testimony. Stevens, 78 S.W.3d at 832.

         Dr. Mileusnic testified that although she sent the victim’s blood sample to another laboratory
for testing, she was trained in toxicology, and it was her job to synthesize the results and form an
opinion of the relationship between the results and the autopsy findings. Dr. Long’s report was
introduced as an exhibit in which he explained that he could not report a positive finding for
Oxycontin because, although the first part of the test tested positive for the drug, the second part of
the test could not be performed. As a result, laboratory protocol required a negative finding. Dr.


                                                 -14-
Long stated in his report that the inability to perform the second part of the test was “most reasonably
due to the dilution effect as we had very little sample to analyze.”

       Dr. Mileusnic testified,

       Well, I’m a pathologist who knows that one toxicology test is positive and I have
       changes in the tissues in the baby. I have kidneys [which] show severe damage. I
       have [a] brain that shows severe damage. And I have one toxicology report test
       positive. For me that’s enough. I don’t need both toxicology tests positive. I need
       one toxicology positive and I need changes in the tissue.

        A medical examiner may testify as to the cause of the victim’s death. See State v. Bragan,
920 S.W.2d 227, 245 (Tenn. Crim. App. 1995). An expert may base his or her opinion on “(1)
information actually perceived by the expert; (2) information made known to the expert by others;
and (3) information reasonably relied upon by experts in the particular field.” State v. Kennedy, 7
S.W.3d 58, 66 (Tenn. Crim. App. 1999) (citing Tenn. R. Evid. 703). Dr. Mileusnic’s experience and
medical training qualified her to testify as to the cause of the victim’s death. The fact that Dr. Long
was unable to perform a corroborating test for the presence of Oxycontin in the victim’s blood
sample goes to the weight of the evidence presented. Defendant is not entitled to relief on this issue.

V. Inconsistent Verdicts

        Defendant does not challenge the legal sufficiency of the evidence supporting the criminally
negligent homicide conviction. We will review, however, the sufficiency of the evidence supporting
the aggravated child abuse conviction even though we are reversing Defendant’s convictions. If the
evidence was legally sufficient to support the conviction for aggravated child abuse, reversal based
upon trial error permits a remand of this case for a new trial. State v. Howard, 30 S.W.3d 271, 277
(Tenn. 2000) (citing Lockhart v. Nelson, 448 U.S. 33, 39, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).
However, if the evidence was not legally sufficient to support the conviction beyond a reasonable
doubt, the guarantee against double jeopardy would mandate reversal of the conviction and dismissal
of the charges. Howard, 30 S.W.3d at 277 (citing Burks v. United States, 473 U.S. 1, 10, 98 S. Ct.
2141, 57 L. Ed. 2d 1 (1978).

        Defendant frames her issue involving her aggravated child abuse conviction as a challenge
to the consistency of the verdicts. That is, Defendant contends that because the jury found her not
guilty of first degree felony murder, then they could not find her guilty of the underlying felony,
aggravated child abuse, beyond a reasonable doubt. .

       As our Supreme Court has long concluded, however,

       [c]onsistency in verdicts for multiple count indictments is unnecessary as each count
       is a separate indictment. Therein lies the essential reasoning. An acquittal on one
       count cannot be considered res judicata to another count even though both counts


                                                 -15-
       stem from the same criminal transaction. This Court will not upset a seemingly
       inconsistent verdict by speculation as to the jury’s reasoning if we are satisfied that
       the evidence establishes guilt of the offense which the conviction was returned.

State v. Wiggins, 498 S.W.2d 92, 93-94 (Tenn.1973).

         In examining whether the evidence is sufficient to support Defendant’s conviction of
aggravated child abuse, we must review the evidence in a light most favorable to the prosecution in
determining whether a rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed
and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The
defendant has the burden of overcoming this presumption, and the State is entitled to the strongest
legitimate view of the evidence along with all reasonable inferences which may be drawn from that
evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have
resolved all conflicts and drawn any reasonable inferences in favor of the State. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues raised by the evidence are resolved by the
trier of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990).

        The offense of aggravated child abuse is committed if a person commits the offense of child
abuse or neglect and the “act of abuse or neglect results in seriously bodily injury to the child.”
Tenn. Code Ann. § 39-15-402(a)(1). The offense of aggravated child abuse is a Class A felony if
the victim is six years of age or less. Id. § 39-15-402(b). The offense of child abuse or neglect is
committed by “[a]ny person who knowingly, other than by accidental means, treats a child under
eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to
adversely affect the child’s health and welfare.” Id. § 39-15-401(a).

        Viewing the evidence in a light most favorable to the State, Defendant bought Oxycontin
pills on July 22, 2002. Mr. Kirk crushed the pills on top of the washing machine in the bathroom,
and he and Defendant ingested the drug. The victim woke up and was fussy. Defendant rubbed his
wet pacifier in the Oxycontin crumbs and placed the pacifier back into the victim’s mouth. The
victim went to sleep. The next morning, the victim showed signs of respiratory distress and died two
days later. The medical examiner noted severe damage to the victim’s kidneys and brain which were
consistent with the ingestion of Oxycontin. Based on the foregoing, a rational trier of fact could find
beyond a reasonable doubt that Defendant was guilty of aggravated child abuse.




                                                 -16-
VI. Sentencing Issues

        In its sentencing considerations, the trial court placed great weight on enhancement factor
(2) based on Defendant’s regular use of controlled substances. See Tenn. Code Ann. § 40-35-114(2).
The trial court stated,

       I believe we’ve got number 2. I can’t see much of a previous [criminal] history to
       support number 2, but the criminal behavior is more than abundant to give
       considerable weight to enhancement factor number 2. Drinking a fifth of liquor five
       times a week is not necessarily criminal behavior. Smoking marijuana, using cocaine
       and Oxycontin is. Those are all illegal substances she has used, consumed them
       apparently very freely and regularly. So that is an enhancement factor to which a
       great deal of weight will be given.

       The trial court applied enhancement factor (5), the victim was particularly vulnerable because
of age, to Defendant’s sentence for her criminally negligent homicide conviction, but not her
sentence for aggravated child abuse. See id. § 40-35-114(5).

       The trial court also found that enhancement factor 16, violation of a private trust, was
applicable. See id. § 40-35-114(16).

       The court’s of the opinion that a mother and a father both . . . using Oxycontin and
       grinding it up on . . . the washing machine or dryer or something, I think. Then just
       because they get sleepy and put the pacifier of this child into the crumbs of that drug
       and administer that to a child, their child. And it can’t be said that the husband did
       that because the wife has admitted to doing that, the mother. And I don’t know of
       any higher position of private trust than could be expected than that of a parent and
       a child and particularly one that is . . . an infant only a few months old.

        The trial court did not find that any mitigating factors were applicable. For her aggravated
child abuse sentence, the trial court stated, “Which means that I have found enhancement factor 2
and 16 to be the ones that would be entitled to great weight and are sufficient to require the service
of a sentence in the aggravated child abuse conviction of 25 years in the Tennessee Department of
Corrections.” Relying on the presence of enhancement factors (2) and (5), the trial court sentenced
Defendant to two years for her criminally negligent homicide conviction. The trial court ordered
Defendant to serve her sentences concurrently.

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Id. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “If the trial court applies



                                                -17-
inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of
correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

        The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        As a Range I standard offender, Defendant is subject to a sentence of between fifteen and
twenty- five years for her Class A felony conviction, and between one and two years for her Class
E felony conviction. Tenn. Code Ann. §§ 40-35-112(a)(1) and (5). In calculating the sentence for
a Class A felony conviction, the presumptive sentence is the midpoint of the range if there are no
enhancement or mitigating factors. Id. § 40-35-210(c). In calculating the sentence for a Class E
felony conviction, the presumptive sentence is the minimum in the range if there are no enhancement
or mitigating factors. Id. If there are enhancement but no mitigating factors, the trial court may set
the sentence above the presumptive sentence for the Class E felony conviction, and at or above the
presumptive sentence for the Class A felony conviction, but still within the range. Id. § 40-35-
201(d).

        Defendant’s only argument against the trial court’s application of the foregoing enhancement
factors in determining the length of both of her sentences is premised on the United States Supreme
Court’s recent decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Defendant
contends under Blakely that the trial court’s consideration of the enhancement factors violates his
Sixth Amendment right to a trial by jury. Our Supreme Court, however, has recently concluded that
Tennessee’s sentencing scheme does not violate a defendant’s Sixth Amendment rights as addressed
in Blakely. State v. Edwin Gomez and Jonathan S. Londono, ___ S.W.3d ___, No. M2002-01209-
SC-R11-CD, 2005 WL 856848, at *22 (Tenn. Apr. 15, 2005). Defendant is not entitled to relief on
his Blakely challenge.

         Although Defendant does not challenge the trial court’s application of enhancement factors
(2), (5) and (16) under Tennessee’s sentencing scheme, we find that the trial court’s consideration
of these factors was appropriate. A sentence may be enhanced in the defendant has a history of prior
criminal behavior. See Tenn. Code Ann. § 40-35-114(2). In the pre-sentence report, Defendant
stated that she began using cocaine at eighteen and said that it was “just for fun.” Defendant also
regularly used Oxycontin, beginning at age nineteen, because “she liked them.” Defendant was
twenty-three years old at the time of the sentencing hearing. Defendant’s continued drug use
constitutes “criminal behavior” as contemplated by enhancement factor (2). See State v. Carrico,
968 S.W.2d 280, 288 (Tenn. 1998). The trial court’s consideration of this enhancement factor was
not inappropriate.


                                                  -18-
       Enhancement factor (5) requires a finding that a victim was particularly vulnerable to the
offense because, as relevant here, of the victim’s age. See Tenn. Code Ann. § 40-35-114(5). “A
victim’s youth does not necessarily equate with vulnerability.” State v. Lewis, 44 S.W.3d 501, 505
(Tenn. 2001) (citing State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997)). The Lewis court stated,

       The State is required to proffer evidence in addition to the victim’s age to establish
       particular vulnerability; however, that evidence “need not be extensive.” Poole, 945
       S.W.2d at 97. Also, a court may consider the natural vulnerabilities attendant to the
       extreme ends of the aging spectrum by giving “additional weight . . . to the age of the
       victim in those cases where a victim is extremely young or old.”

Lewis, 44 S.W.3d at 505.

        Dr. Mileusnic testified that the four-month-old victim weighed 12.5 pounds at the time of
his death. She said that in small doses, Oxycontin acts as depressant. Inhaling or ingesting crushed
Oxycontin, however, “can cause sudden and instantaneous and very high amount of drugs in the
system that can actually cause sudden instantaneous death.” Dr. Mileusnic agreed that the effects
of crushed Oxycontin would be quickly introduced into the system of an infant the size of the victim
causing the adverse effects seen in the autopsy. Moreover, because of the victim’s age, he was
incapable of “resisting, summoning help, or testifying against the perpetrator.” See Poole, 945
S.W.2d at 96 (quoting State v. Adams, 864 S.W.2d 31, 35 (Tenn.1993). The evidence does not
preponderate against the trial court’s finding that consideration of enhancement factor (5) in
determining the length of Defendant’s sentence for criminally negligent homicide was appropriate.

        The trial court also applied enhancement factor (16) to Defendant’s sentence for aggravated
child abuse. See Tenn. Code Ann. § 40-35-114(16) (Defendant abused a position of private trust in
committing the offense.) Defendant, as the four-month-old victim’s parent, occupied a position of
private trust. See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). The evidence does not
preponderate against the trial court’s finding that Defendant violated a private trust in committing
the offenses.

       Based on the presence of two enhancement factors for each offense and no mitigating factor,
we cannot conclude that the trial court erred in sentencing Defendant to twenty-five years for her
aggravated child abuse conviction, and two years for her criminally negligent homicide conviction.
Defendant is not entitled to relief on this issue.

                                         CONCLUSION

       In accordance with the foregoing authorities and reasoning, we reverse Defendant’s
convictions and remand for a new trial.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE


                                                -19-
