          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                                  AT KNOXVILLE
                                                                January 21, 2000

                             APRIL 1999 SESSION                Cecil Crowson, Jr.
                                                              Appellate Court Clerk




STATE OF TENNESSEE,                    )
                                       )    NO. E1998-00131-CCA-R3-CD
      Appellee,                        )
                                       )    BLOUNT COUNTY
VS.                                    )
                                       )    HON. D. KELLY THOMAS, JR.
ANGELA RENEE GATES,                    )    JUDGE
                                       )
      Appellant.                       )    (Facilitation of Aggravated Child
                                       )    Abuse; Aggravated Assault)



FOR THE APPELLANT:                          FOR THE APPELLEE:

RAYMOND MACK GARNER                         JOHN KNOX WALKUP
District Public Defender                    Attorney General and Reporter

NATALEE HURLEY                              ERIK W. DAAB
(At Trial)                                  Assistant Attorney General
Assistant Dist. Public Defender             Cordell Hull Building, 2nd Floor
419 High Street                             425 Fifth Avenue North
Maryville, TN 37804                         Nashville, TN 37243-0493

GERALD L. GULLEY, JR.                       MICHAEL L. FLYNN
(On Appeal)                                 District Attorney General
P. O. Box 1708
Knoxville, TN 37901-1708                    KIRK ANDREWS
                                            EDWARD P. BAILEY, JR.
                                            Assistant Dist. Attorneys General
                                            363 Court Street
                                            Maryville, TN 37804-5906




OPINION FILED:



AFFIRMED IN PART; REVERSED IN PART



JOE G. RILEY, JUDGE
                                      OPINION


       Defendant, Angela Renee Gates, appeals as of right her convictions by a

Blount County jury for the offenses of facilitation of aggravated child abuse and

aggravated assault. Honorable D. Kelly Thomas, Jr. sentenced her to concurrent

terms of twelve years and six years, respectively. She presents the following issues

for our review:

       1.      whether the evidence was sufficient to support her conviction for
               facilitation of aggravated child abuse;

       2.      whether her convictions for both facilitation of aggravated child
               abuse and aggravated assault are in violation of double
               jeopardy;

       3.      whether facilitation of aggravated child abuse is a lesser
               included offense of aggravated assault, thereby
               precluding her convictions for both offenses; and

       4.      whether she was properly sentenced.

After a careful review of the record, we conclude that double jeopardy precludes

convictions for both offenses under the facts of this case. We, therefore, REVERSE

and DISMISS the conviction for aggravated assault but AFFIRM the conviction and

sentence for facilitation of aggravated child abuse.1




                                        I. FACTS



       On February 1, 1997, the defendant’s live-in boyfriend, Michael Hyde, was

stopped by the Blount County Sheriff’s Department for a traffic violation. Defendant’s

three-year-old son was a passenger. The officer noticed multiple bruises on the

child’s facial area and a blood blister on his bottom lip. Suspecting that the child had

been abused, the officer eventually took the child to the emergency room of the local

hospital.



       1
        This case was originally submitted to the Court after oral argument in April 1999.
The Court, sua sponte, requested the filing of a supplemental record and briefs. The
supplemental record was filed and in November 1999 the supplemental briefs were filed.
This procedural history explains the reason for the delayed disposition of this appeal.

                                             2
         The emergency room physician testified that “every particular quadrant that

I looked at had evidence of bruising on this child, from his head down to his lower

extremities.” Bruising was even discovered in the child’s genital area. The physician

concluded that the nature and extent of the injuries indicated they were not

accidentally caused and were “extremely painful” for the child. The physician further

concluded the injuries were between three and fourteen days old.



         Detective Scott Carpenter arrested and interviewed the defendant. The

defendant denied abusing the child and stated that all discipline had been turned

over to Hyde. The defendant stated that she had noticed bruises on the child when

she bathed him and asked Hyde to stop bruising him. Nevertheless, she continued

to allow Hyde to discipline the child. If Hyde was not at home when the child

misbehaved, the defendant would send the child to a bedroom to await punishment

by Hyde upon his return.



         Defendant’s stepmother testified that the defendant denied abusing the child,

yet stated she allowed Hyde to administer the punishment. Nevertheless, the

defendant told her stepmother that she loved Hyde and “would go to her grave and

she would not testify or say anything against [Hyde].” Two of defendant’s sisters also

testified that the defendant indicated that Hyde administered the discipline on the

child.



         The defendant testified at trial. She stated that she alone disciplined the child

and used a belt. She contended that she caused some of the bruising while

disciplining the child, but stated that many of the injuries were caused by the child

himself. She maintained that Hyde did not cause the injuries to the child.



         In rebuttal, Investigator Amy Galyon testified that she participated in the

defendant’s interview upon her arrest.           In her interview the defendant denied

personally abusing the child and stated the beatings were administered by Hyde.



                                             3
The defendant stated that she told Hyde not to leave any more bruises on the child,

yet Hyde was still to be in charge of the discipline. At no time did the defendant

identify any other source for the injuries. The defendant told Investigator Galyon that

she would send the child to his room until Hyde got home to administer the discipline.

The defendant blamed the child’s lack of cooperation for the discipline that he

received.



       Based upon the testimony at trial, the jury convicted the defendant on both

counts as charged; to-wit: facilitation of aggravated child abuse and aggravated

assault. See Tenn. Code Ann. §§ 39-11-403; 39-15-402 ; and 39-13-102(b).




                        II. SUFFICIENCY OF THE EVIDENCE



       Defendant contends the evidence is insufficient to support a conviction for

facilitation of aggravated child abuse. We respectfully disagree.



       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). 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). On appeal, the state is entitled to

the strongest legitimate view of the evidence and all legitimate or reasonable

inferences which may be drawn therefrom. Id. 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



                                             4
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).



       Facilitation of aggravated child abuse is committed when “knowing that

another intends to commit [aggravated child abuse], but without the intent required

for criminal responsibility pursuant to § 39-11-402(2), the person knowingly furnishes

substantial assistance in the commission of [aggravated child abuse].” Tenn. Code

Ann. § 39-11-403(a).     Aggravated child abuse is committed by a person who

knowingly, other than by accidental means, treats a child under eighteen (18) years

of age in such a manner as to inflict serious bodily injury. Tenn. Code Ann. §§ 39-15-

401(a), 402(a)(1). “Serious bodily injury” is a bodily injury that involves “[e]xtreme

physical pain.” Tenn. Code Ann. § 39-11-106(a)(34)(C). Aggravated child abuse is

a Class A felony when the child is six (6) years of age or less. Tenn. Code Ann. § 39-

15-402(b). Facilitation of aggravated child abuse of a child six (6) years of age or

less is, therefore, a Class B felony. See Tenn. Code Ann. § 39-11-403(b).



       Looking at the evidence in a light most favorable to the state, as this Court is

required to do, the evidence is sufficient to support the conviction. The proof

unquestionably established that the three-year-old child was treated and abused in

such a manner as to result in serious bodily injury. We further conclude that the

defendant furnished “substantial assistance” to Hyde in the commission of the

offense. The defendant discovered extensive and painful bruises on the child when

she bathed him. Nevertheless, she continued to request that Hyde discipline the

child. When Hyde was not home, she required the child to remain in his room until

Hyde could administer punishment.



       This issue is without merit.




                                          5
                              III. DOUBLE JEOPARDY



         Defendant contends that convictions for both facilitation of aggravated child

abuse and aggravated assault in this case are precluded by double jeopardy

pursuant to the authority of State v. Denton, 938 S.W.2d 373 (Tenn. 1996). We must

agree.



         Count 1 of the indictment alleged that “between November 27, 1996 through

February 1, 1997" the defendant committed facilitation of aggravated child abuse.

Count 2 of the indictment alleged that “on the day and year aforesaid” the defendant

committed aggravated assault by “failing or refusing to protect such child from

aggravated child abuse.” See Tenn. Code Ann. § 39-13-102(b). The defendant was

convicted on both counts.



         Under Denton, the double jeopardy analysis requires the following:

               1.     a Blockburger analysis of the statutory offenses;

               2.     an analysis, guided by the principles of Duchac, of the
                      evidence used to prove the offenses;

               3.     a consideration of whether there were multiple victims or
                      discrete acts; and

               4.     a comparison of the purposes of the respective statutes.

938 S.W.2d at 381. None of these steps is determinative; rather the results of each

must be weighed and considered in relation to each other. Id.



                              A. Blockburger Analysis

         The “same-elements test” under Blockburger examines whether each offense

contains an element not contained in the other; if not, double jeopardy bars additional

punishment and successive prosecution. See Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Winningham, 958 S.W.2d 740, 743

(Tenn. 1997). Facilitation of aggravated child abuse requires proof of an aggravated

child abuse and knowingly furnishing substantial assistance. Aggravated assault


                                           6
requires proof that a parent knowingly failed or refused to protect a child from

aggravated child abuse. Each offense has an element that the other does not.

There is no Blockburger violation.



                                B. Duchac Analysis

       The Duchac analysis requires an examination of whether the same evidence

was used to prove the offenses.

                      One test of identity of offenses is whether the
               same evidence is required to prove them. If the same
               evidence is not required, then the fact that both charges
               relate to, and grow out of, one transaction, does not
               make a single offense where two are defined by the
               statutes.

Duchac v. State, 505 S.W.2d 237, 239 (Tenn. 1973).



       The state insists that the same evidence was not utilized to convict on both

offenses. This Court ordered a supplemental record in order to examine the state’s

position at trial. We agree that in some cases different facts might be relied upon to

properly convict of both offenses. However, our review of this record, including the

state’s closing argument, indicates that the state relied upon the defendant’s

knowingly allowing her boyfriend to excessively discipline her child for both

convictions.



       Thus, this part of the Duchac analysis favors a double jeopardy finding.



                                C. Multiple Victims

       The double jeopardy analysis further requires the Court to consider whether

there were multiple victims or discrete acts. Denton, 938 S.W.2d at 381. In the case

at bar there were neither multiple victims nor identifiable discrete acts justifying

separate convictions. This analysis favors a double jeopardy finding.




                                          7
                                D. Legislative Intent

       The key issue in multiple punishment cases is legislative intent. Denton, 938

S.W.2d at 379. The intent of the child abuse statutes is to protect children from the

knowing infliction of injury by another. The purpose of the aggravated assault

provision relative to child abuse places an affirmative obligation on the parent to

protect his or her child from abuse by another. However, the best evidence of

legislative intent is that expressed by the natural and ordinary meaning of the

language used in the statute. State v. Alford, 970 S.W.2d 944, 946 (Tenn. 1998).

Tenn. Code Ann. §39-15-401(d) relative to child abuse provides as follows:


       A violation of this section may be a lesser included offense of any kind
       of...statutory assault...if the victim is a child and the evidence supports
       a charge under this section. In any case in which conduct violating this
       section also constitutes assault, the conduct may be prosecuted under
       this section or under § 39-13-101[assault]. (Emphasis added).

Thus, the expressed legislative intent is that such conduct be prosecuted under the

child abuse statutes or assault statutes, but not both.



                                 E. Our Conclusion

       Based upon our Denton analysis, we conclude the defendant cannot be

convicted of both facilitation of aggravated child abuse and aggravated assault under

the facts and circumstances of this case.         Accordingly, we must reverse the

conviction for aggravated assault.




                                    IV. ELECTION



       An issue closely related to the double jeopardy analysis is whether the state’s

failure to elect a discrete instance requires a new trial. See State v. Walton, 958

S.W.2d 724 (Tenn. 1997). Even though this issue was not originally raised by the

parties, the failure to elect may be plain error. Id. at 727.




                                           8
       An election is required where the state is pursuing a conviction for a discrete

crime and proof of additional discrete crimes are introduced in evidence. State v.

Hoxie, 963 S.W.2d 737, 742 (Tenn. 1998). However, an election is not required

when the crime charged requires proof of a continuous course of unlawful conduct.

Id.   (stalking requires proof of a continuous course of conduct and does not

necessitate an election by the state).



       The nature of the offense of child abuse is unique. Child abuse may be

committed by a single act; however, it may also be established by a series of acts or

a continuous course of conduct. We recognize that child abuse might be difficult to

detect or establish based upon a single discrete instance. Therefore, we decline to

extend the election requirement to any and all child abuse cases. The evidence in

each case must be evaluated in order to determine whether an election is mandated.



       In the case at bar, no election was required. The medical proof clearly

established abuse as a result of a continuous course of excessive discipline. The

multiple injuries could not be tied to discrete instances, nor did the state seek a

conviction for a discrete instance as is customarily done in sexual assault cases. See

State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993).




                        V. LESSER INCLUDED OFFENSE



       Defendant contends that facilitation of aggravated child abuse is a lesser

included offense of aggravated assault, thereby precluding a conviction for both

offenses. Our conclusion that a conviction for both offenses was improper under a

double jeopardy analysis pretermits this issue and makes a determination on the

merits unnecessary.




                                          9
                                 VI. SENTENCING



       Defendant contends she was improperly sentenced by the trial court.

Specifically, she contends the maximum Range I sentences of twelve years and six

years for facilitation of aggravated child abuse and aggravated assault, respectively,

are excessive. She further contends the trial court erred in denying her alternative

sentencing. We reject her contentions.



       The trial court found that three statutory enhancement factors were applicable:

(1) the victim was particularly vulnerable because of his age, Tenn. Code Ann. § 40-

35-114(4); (2) the defendant treated the victim with exceptional cruelty, Tenn. Code

Ann. § 40-35-114(5); and (3) the defendant abused a position of private trust, Tenn.

Code Ann. § 40-35-114(15). The trial court did not apply any mitigating factors.

Furthermore, the trial court found that the defendant was not a proper candidate for

alternative sentencing.



                              A. Standard of Review

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

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

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances. State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



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

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

minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d

803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.

1991). However, if such factors do exist, a trial court should start at the minimum

sentence, enhance the minimum sentence within the range for enhancement factors

and then reduce the sentence within the range for the mitigating factors. Tenn. Code


                                         10
Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute,

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

the trial court complies with the purposes and principles of the sentencing act and its

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

1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v.

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

35-210 Sentencing Commission Comments. Nevertheless, should there be no

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

sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d);

see Lavender, 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn.

Crim. App. 1994).



                               B. Length of Sentence

       Defendant contends the trial court erred in its application of enhancement

factor (4), finding the child was particularly vulnerable because of his age. Although

the Class B offense of facilitation of aggravated child abuse includes an age element

(it requires that the child be six years of age or less,) use of enhancement factor (4)

is not necessarily excluded. This enhancement factor relates more to the natural

physical and mental limitations of the victim than merely to the victim’s age. State v.

Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The Court should consider whether the

victim, due to his age, was incapable of resisting, summoning help, or testifying

against the perpetrator. Id. The trial court applied this factor but did not give it great

weight.



       We conclude the trial court did not err. The three-year-old child was not as

capable as, for example, a six-year-old child of resisting, summoning help or testifying

against the perpetrators. This issue is without merit.



       Defendant also contends the trial court erred in applying enhancement factor

(5), finding that the victim was treated with exceptional cruelty. This precious child



                                           11
was not the victim of simple abuse, but rather multiple and extensive beatings. He

was bruised and/or cut from head to toe. He was treated with exceptional cruelty

beyond that necessary for the offense. This issue is without merit.



       Defendant further contends the trial court erred in applying enhancement

factor (15), finding that the defendant abused a position of private trust. The

defendant, as the three-year-old child’s parent, occupied a position of private trust.

See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). The trial court did not err

in applying this enhancement factor to facilitation of aggravated child abuse.2



       Next, defendant contends the trial court erred in failing to mitigate the

sentence based upon mitigating factor (6), which provides mitigation for a defendant

who, because of youth, lacks substantial judgment in committing the offense. Tenn.

Code Ann. § 40-35-113(6). The defendant was twenty years old at the time of this

offense, had obtained her GED, completed a certified nurse assistant training

program, and had attended, but not completed, a medical assistant program. The

abuse took place over a period of time and involved obvious, multiple and extremely

painful injuries to a three-year-old child. The application of this mitigating factor is not

determined simply by the chronological age of the offender. State v. Elder, 982

S.W.2d 871, 879 (Tenn. Crim. App. 1998). The youth of the offender must be

considered in context with the various circumstances tending to demonstrate her

ability or inability to appreciate the nature of her conduct. Adams, 864 S.W.2d at 33.

The trial court did not err in refusing to apply this mitigating factor.



       Defendant contends the trial court erred in refusing to apply mitigating factor

(11), that it was unlikely that a sustained intent to violate the law motivated her

criminal conduct. Defendant allowed and authorized this incredible abuse over a

substantial period of time. The trial court did not err in rejecting this mitigating factor.



       2
        The trial court did not apply this enhancement factor to the aggravated assault
conviction.

                                            12
       Finding no error with regard to the application of enhancement and/or

mitigating factors, we conclude the length of the sentence of twelve years for

facilitation of aggravated child abuse is proper. 3



                               C. Alternative Sentencing

       Defendant contends the trial court should have granted her alternative

sentencing. Since defendant received a sentence in excess of eight years, she is not

eligible for probation. See Tenn. Code Ann. § 40-35-303(a). Furthermore, the

defendant does not meet the general eligibility requirements for community

corrections since her offense resulted in “serious bodily injury” and is not a non-

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

she does not meet the eligibility requirements for the special needs provision for

community corrections since the length of her sentence exceeds probation eligibility.

See Tenn. Code Ann. § 40-36-106(c); State v. Grigsby, 957 S.W.2d 541, 546 (Tenn.

Crim. App. 1997). Therefore, defendant is not eligible for any type of alternative

sentencing.



       This issue is without merit.




                                      CONCLUSION



       Based upon the foregoing, we REVERSE and DISMISS the conviction for

aggravated assault but AFFIRM the conviction and sentence for facilitation of

aggravated child abuse.




       3
        We do not specifically address the length of the sentence for aggravated assault since
that conviction has been reversed. Nevertheless, if the conviction were proper, we would
find no error in the assessment of the maximum sentence.

                                              13
                                    _____________________________
                                    JOE G. RILEY, JUDGE



CONCUR:



____________________________
JERRY L. SMITH, JUDGE



____________________________
NORMA MCGEE OGLE, JUDGE




                               14
