           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        SEPTEMBER 1999 SESSION
                                                      October 5, 1999

                                                    Cecil Crowson, Jr.
                                                   Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )   C.C.A. NO. 01C01-9809-CC-00371
           Appellee,             )
                                 )   WILLIAMSON COUNTY
VS.                              )
                                 )   HON. DONALD P. HARRIS,
JASON BURNS,                     )   JUDGE
                                 )
           Appellant.            )   (Aggravated Child Abuse and Neglect)



FOR THE APPELLANT:                   FOR THE APPELLEE:


ROBERT H. PLUMMER, JR.               PAUL G. SUMMERS
415 Bridge St.                       Attorney General & Reporter
P.O. Box 1361
Franklin, TN 37065-1361              ELIZABETH B. MARNEY
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     RON DAVIS
                                     District Attorney General

                                     DEREK SMITH
                                     Asst. District Attorney General
                                     P.O. Box 937
                                     Franklin, TN 37065




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              A jury found the defendant guilty of aggravated child abuse and neglect,

and he received an eighteen year sentence in the Tennessee Department of Correction.

He now appeals, raising the following issues:

              I. Whether the convicting evidence is sufficient;

              II. Whether the trial court erred in admitting testimony from
              a Department of Child Services investigator that the victim
              cried at the mention of the defendant’s name;

              III. Whether the trial court erred in failing to suppress his
              statements to the police on the basis his mental
              incompetence prevented a knowing and voluntary waiver of
              his Miranda rights; and

              IV. Whether the trial court erred in not allowing educators to
              testify about the defendant’s mental abilities unless the
              defendant first testified.

Finding no merit to the defendant’s arguments, we affirm his conviction.



              At trial, Detective Terrance Smithson of the Franklin Police Department

testified that on March 25, 1997, he was summoned to the Williamson County Medical

Center to investigate the circumstances surrounding severe burns sustained by the three-

year-old victim in this case. Detective Smithson testified that when he arrived, the victim

was in the process of being transferred to the Vanderbilt University Medical Center.

Three individuals had accompanied the victim to the hospital---his aunt, Sarah

McWilliams; Ms. McWilliams’ live-in boyfriend, the defendant; and the defendant’s

guardian, Tommy Perkins---but according to Detective Smithson, none of them seemed

concerned about the victim or admitted knowing what had happened to him.



              Detective Smithson testified he first observed the victim’s injuries at

Vanderbilt. According to the detective, the victim had sustained severe blistering and

                                            2
“skin slippage”1 to his lower legs and feet and his genital area. Pictures of the victim’s

genital area reflect his penis was grossly enlarged from thermal injury. Detective

Smithson also testified that the victim had a bruise on his thigh and to his left eye, but the

victim did not have any injuries on the soles of his feet or his buttocks. W hen Detective

Smithson attempted to talk with the victim, the victim was unresponsive. Before Detective

Smithson left the hospital, he told Mr. Perkins to bring all of the house residents to the

police department the next day for questioning.



                Detective Smithson testified that when he interviewed the defendant the

next day, he told him he was investigating a serious offense and someone would have

to answer for it. The detective testified he read the defendant his Miranda rights and the

defendant waived them, but he did not arrest the defendant. He also testified the

defendant was unresponsive unless asked a direct question. According to Detective

Smithson, the defendant denied knowing what had happened, but said he woke at 6:00

a.m. on March 25, 1997, to the victim crying and had told the victim to go to the

bathroom. According to Detective Smithson, the defendant said when he realized the

victim had not returned approximately one hour later, he checked on the defendant and

noticed the victim’s feet were burnt. The defendant did not admit involvement in the

victim’s injuries.



                Detective Smithson testified he next interviewed the defendant on March

31, 1997, after the defendant again waived his Miranda rights. At the conclusion of that

interview, the defendant signed a statement that was introduced into evidence.

According to the statement, the defendant admitted he had drawn a bath for the victim

on March 24 because the victim had defecated on himself. When the tub was a little less


        1
         Detective Smithson defined “sk in slippage” as skin that had pulled away from the lower layers
of the skin.

                                                    3
than half full, the defendant turned off the water, told the victim to get into the tub, and

left the house to visit his cousin. According to the statement, the defendant said that Ms.

McWilliams did not burn the victim because he did, but it was an accident. When

Detective Smithson asked the defendant how he had burned the victim, the defendant

replied he did not know. Detective Smithson testified that when he stated he had three

children and could understand how the defendant could become angry if the victim had

defecated on himself, the defendant replied, “I know what you’re trying to do. You all

think you’re slick.”



               Detective Smithson testified that he also interviewed the defendant

approximately one week later when the defendant appeared at the police station and

claimed he remembered something. The defendant’s statement, which was introduced

into evidence, recounted a previous incident in which Ms. McWilliams apparently placed

the victim in a tub of hot water, prompting the victim to cry. When the defendant asked

Ms. McWilliams why she was doing that, she told the defendant to mind his own

business. Detective Smithson asked the defendant why he did not tell him this earlier,

and the defendant replied he did not know.



               Detective Smithson also testified he tested the temperature of the hot water

in the bathroom at the victim’s residence. He testified his thermometer read 120 degrees

and he had no reason to believe that reading was inaccurate, even though the

temperature gauge of the water heater, which was in the bathroom, reflected 140

degrees.



               Sarah McWilliams, the victim’s maternal aunt and the defendant’s girlfriend,

testified she and the defendant shared a bedroom with the victim and the victim’s mother



                                             4
in a house occupied by several individuals. She explained that she and the defendant

shared one bed while the victim and his mother shared a different bed. According to her

testimony, on March 24, 1997, around 3:00 p.m., the victim defecated on the toilet and

on himself and could not clean it up. Ms. McWilliams testified the defendant offered to

give the victim a bath and then remarked that he should give the victim a bath in hot

water. Ms. McWilliams testified that when she asked him what he meant by that

statement, the defendant looked like he was going to harm her.



              According to Ms. McWilliams, the defendant ran some water in the bathtub.

A few moments later, she checked the temperature of the bath water because she was

curious from the defendant’s previous statement, but the water was not hot. The

defendant continued to run water into the tub. Ms. McWilliams testified that she sent the

victim into the bathroom and a few moments later, she heard the victim crying. When she

checked on the victim, he was standing in the tub and the defendant was still in the

bathroom. Ms. McWilliams asked the victim why he was crying. She testified that the

victim stopped, so she left the bathroom. She testified she then heard the defendant add

more water to the bathtub and the victim began to cry again. Again, she went to the

bathroom and found the victim standing in the bathtub. She testified that she asked the

victim why he was crying, but again he did not answer. Instead, the defendant hit the

victim in the eye. Ms. McWilliams testified she became frightened she would be blamed

for any injuries to the victim, so she left the house and went to talk with a friend while the

defendant continued to bathe the victim. When she returned to the house, the bathroom

was empty, the defendant had left the house, and the victim was in the bedroom.

According to Ms. McWilliams, the victim was sitting with his lower legs folded underneath

of his buttocks and was holding up his hand crying, “Jason [the defendant] hit me.” Ms.

McWilliams testified that when she asked the victim what had happened, he only replied



                                              5
that the defendant had hit him. According to Ms. McWilliams, the defendant’s hands and

lower legs were “a little reddish,” but not bad enough to seek medical treatment.



              Ms. McWilliams testified she dried the victim, who indicated the area around

his feet was sore. She did not notice anything unusual about his penis. According to Ms.

McWilliams, the victim did not want her to wipe his legs or put socks on his feet. Ms.

McWilliams dressed the victim in a shirt, underwear, jogging pants, and socks, and the

two watched television for approximately five hours. According to the witness, the victim

was acting strangely because he did not want to eat dinner or watch television, but rather

just wanted to go to sleep. Ms. McWilliams testified she put the victim to bed between

9:00 p.m. and 10:00 p.m. According to her, when she removed the victim’s jogging pants,

the victim showed no pain, although his legs reflected the same degree of mild redness

she had previously observed. She testified that the defendant had returned home at

approximately 8:00 p.m., but did not have contact with the victim that evening.



              Ms. McWilliams testified that the next morning around 7:00 a.m., the

defendant called the victim, who was still dressed in socks and underwear, to their bed

and asked what was on the victim’s feet. Ms. McWilliams surmised that the defendant

perhaps believed the victim had again defecated on himself. Ms. McWilliams testified

she removed the victim’s socks and underwear, saw the blisters on his body, and insisted

that the defendant accompany her and the victim to the hospital. According to Ms.

McWilliams, the defendant said the victim must have received the injuries in the middle

of the night when he either burned himself with hot water or when a rat bit him. According

to Ms. McWilliams, the victim was removed from the household following this incident and

placed in the custody of his paternal aunt.




                                              6
              Ms. McWilliams testified that within one week after the burning, she had

moved out of the house where the defendant was living. According to her testimony, the

defendant came to her new residence and talked with her on the front porch, telling her

that he had hurt the victim “because of his mother” and that if he went to court, he would

“run” or kill himself. She testified that the defendant and the victim’s mother did not get

along because the victim’s mother would often leave the residence for the evening,

leaving the victim in the care of Ms. McWilliams and the defendant.     She also testified

that the defendant had complained that the victim was not potty-trained and would

defecate on himself and items in the house. According to Ms. McWilliams, the defendant

had also said the victim “acted gay” and “walked gay.”



              On cross-examination, Ms. McWilliams admitted that when the victim’s

mother left the house, the only person affected was her, not the defendant. She also

testified that when she found the victim sitting on his lower legs after his bath, he

complained only about his hand, which did not sustain any burning injuries.



              Deborah Walton, the defendant’s cousin, also testified. She admitted

knowing both the defendant and Ms. McWilliams, but claimed she did not favor one over

the other. She testified she overheard part of a conversation between the defendant and

Ms. McWilliams on the front porch of Ms. McWilliams’ new residence approximately one

week after the burning incident. According to Ms. Walton, the defendant said if he had

harmed the victim, it was an accident.       She also testified that she overheard the

defendant say that when he ran water for the victim’s bath, he did not know whether the

water was hot or cold because he did not check its temperature.



              Lea Hicks, an investigator with the Department of Children’s Services,



                                            7
testified she visited the victim in the hospital shortly after the incident, but he was

incapable of making any statements. She attempted to talk with the victim the next day,

but he still did not communicate with her. She testified she made a final attempt to talk

with the victim on April 3, 1997, but still received no response from the victim. She

testified she began naming the various individuals in the household, with the defendant’s

name being the last name mentioned. According to Ms. Hicks, the victim remained stoic

as she said every name, until the defendant’s name was mentioned. Over defense

objection, Ms. Hicks testified that the victim began screaming and crying when the

defendant’s name was mentioned. She testified she made a note of the victim’s reaction

because she thought it unusual the victim reacted so dramatically.



              On cross-examination, Ms. Hicks admitted she could not surmise whether

the victim’s reaction meant the defendant had burned the victim or whether there was

some other reason the victim did not like the defendant or some other event that had

happened. Ms. Hicks also admitted that her interview session with the victim had lasted

approximately thirty to forty minutes and she did not know whether it was possible the

victim began crying simply because he wanted the interview to end.



              Dr. Gerald Hickson, a pediatrician at the Vanderbilt University Medical

Center, testified he had examined the victim and found first-, second-, and third-degree

burns to the victim’s penis and genital area, the inside of his thighs, and his lower legs.

Approximately twelve percent of the victim’s body was burned. According to Dr. Hickson,

thermal injuries such as these, which were caused by a hot liquid, produced blistering

almost immediately, within a matter of minutes. He testified that the length of time of

sustained contact necessary to produce such severe burns depended upon the

temperature of the water. In other words, he explained, if the temperature of the water



                                            8
was 120 degrees or less, forty-five to sixty seconds of sustained contact would be

necessary to produce second-degree burns, whereas if the water temperature was 140

degrees, only fifteen to thirty seconds of exposure would be necessary to produce

second-degree burns.



                Dr. Hickson testified that the injuries in this case could have been caused

by water being continuously splashed upon the victim while the victim was standing

because there was a lack of injuries to the victim’s buttocks, outer thighs, upper legs, and

soles of his feet. The lack of injuries in those places, Dr. Hickson testified, excluded the

possibilities that the child slipped and fell into the water or that the child immersed himself

in a full tub of water. Dr. Hickson testified that the pattern of the injuries to the victim’s

groin and inner thigh area was consistent with water being splashed on that area. Dr.

Hickson also testified that the pattern of the burns on the feet was consistent with

immersion in water, although the fact that the soles were not burned indicated that the

victim was standing at the time and his soles were insulated by the tub.



                On cross-examination, Dr. Hickson reiterated that blisters from burns similar

to those sustained by the victim manifest themselves almost immediately. He also

testified that given the size and prominence of the blisters in this case, the blisters should

have been noticed by someone putting socks and underwear on the victim shortly after

the incident.



                The State attempted to call the victim, who was four years old at the time,

to the witness stand. The trial court judge ruled, however, that based on an interview with

the victim, the victim was incompetent to testify. The State rested its case, and without

presenting any proof, so did the defendant. Based on this evidence, the jury found the



                                              9
defendant guilty of aggravated child abuse and neglect.



              The defendant argues that the evidence is insufficient to support his

conviction because Dr. Hickson testified the victim would have blistered immediately while

Ms. McWilliams testified she did not see the blisters until the next day, during which time

the defendant did not have contact with the victim. When a defendant challenges the

sufficiency of the convicting evidence, we must review the evidence in the light most

favorable to the prosecution in determining whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). We do not reweigh or re-evaluate the evidence and are required to afford the

State the strongest legitimate view of the proof contained in the record as well as all

reasonable and legitimate inferences that may be drawn from the proof. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A guilty verdict rendered by the jury and

approved by the trial judge accredits the testimony of the witnesses for the State, and a

presumption of guilt replaces the presumption of innocence. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973).



              Here, notwithstanding Ms. McWilliams’ testimony that she did not observe

the blisters until the day after the defendant bathed the victim, the State presented ample

evidence for the jury to conclude that the defendant caused serious bodily injury to the

victim by knowingly exposing him to hot water. Dr. Hickson testified that the victim’s

injuries were consistent with being splashed with hot water while the victim was standing.

The evidence showed that the water temperature at the residence was between 120 and

140 degrees, and in order to cause second- and third-degree burns with that temperature

of water, the victim must have been exposed to the water for anywhere from fifteen to



                                            10
sixty seconds. The evidence also showed that the defendant, who was irritated with the

victim’s toilet-training problems, volunteered to bathe the victim, stated he should give the

victim a bath in hot water, caused the victim to cry two times during the bath while the

victim was standing in the tub, and hit the victim when he cried. Moreover, the defendant

admitted he bathed the victim in hot water and caused the victim’s burns. Despite the

defendant’s claim that he caused the burns accidentally, the evidence is sufficient to

support the defendant’s conviction for aggravated child abuse and neglect. See T.C.A.

§§ 39-15-401(a), 39-15-402(a)(1).



              The defendant also argues that the trial court erred in failing to suppress his

statements to Detective Smithson. The defendant argues that because he has below

average intelligence with a second-grade verbal ability, he was unable to intelligently,

knowingly, and voluntarily waive his Miranda rights, thus invalidating his waiver.



              At the suppression hearing, the defendant introduced testimony from high

school educators who had previously worked with the defendant to support his claim that

he has below average intelligence and only a second-grade verbal ability. To rebut this

testimony, the State presented testimony from a psychiatrist who had conducted a court-

ordered mental evaluation on the defendant. She testified that a low intelligence quotient

did not necessarily mean an individual would be unable to understand his Miranda rights.

The trial court judge asked the psychiatrist whether the defendant would understand his

Miranda rights if the Miranda waiver form was read to him, and she replied that the

defendant would. In her opinion, the defendant was competent to waive his Miranda

rights because he had the ability to understand the information on the waiver form and

was able to understand her instructions during her evaluation of him. Based on this

evidence---in particular, the psychiatrist’s testimony---the trial court found that the



                                             11
defendant understood his Miranda rights as read to him. Because the evidence supports

this finding, the defendant’s argument must fail. See State v. Tate, 615 S.W.2d 161, 162

(Tenn. Crim. App. 1981)(factual findings of the trial court have the weight of a jury verdict

and will not be set aside unless the evidence preponderates against them).



              The defendant next argues that the trial court erred in admitting the

testimony of Ms. Hicks regarding the victim’s negative reaction when she mentioned the

defendant’s name. According to the defendant, this testimony is nonverbal hearsay and

does not tie the defendant to the injury. The defendant also argues that the unfair

prejudicial effect far outweighs any probative value of this evidence. The State argues

that the testimony was admissible as an excited utterance under Tenn. R. Evid. 803(2).



              The State’s purpose of offering this testimony was to prove the defendant’s

identity as the perpetrator of the crime, which renders the evidence hearsay as a

nonverbal statement. Tenn. R. Evid. 801(a)(2), (c). The trial court recognized the

evidence as hearsay, but admitted it into evidence under the state-of-mind hearsay

exception. Tenn. R. Evid. 803(3). The evidence appears to be admissible under Rule

803(3) to show the victim’s state of mind when he heard the victim’s name, i.e., that the

victim was fearful of the defendant or associated some other negative emotion with the

defendant, but if admitted for this purpose, the evidence would not then be relevant

because the victim’s state of mind is not directly probative of whether the defendant

burned the victim. See State v. Smith, 868 S.W.2d 561, 573 (Tenn. 1993); Neil P.

Cohen, et al., Tennessee Law of Evidence § 803(3).2 (3d ed. 1995).



              As the State argues, it appears the excited utterance hearsay exception

applies, if the startling event is deemed Ms. Hicks speaking the defendant’s name, not



                                             12
burning of the victim. See Tenn. R. Evid. 803(2)(defining an excited utterance as a

“statement relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition”); State v. Gordon, 952 S.W.2d

817, 821 (Tenn. 1997)(startling event was the pain suffered during urination subsequent

to rape, not the rape itself); see also United States v. Napier, 518 F.2d 316 (9th Cir.

1975)(startling event was being shown the defendant’s photograph one week after an

assault, not the assault itself). Yet even if considered an excited utterance, the evidence

was more prejudicial than probative because the State made no showing that the victim’s

negative reaction stemmed from the burning rather than from some other unrelated

event. For all the record shows, the victim could have been upset at the defendant for

some other reason or could have been simply expressing his dislike of the defendant for

no particular reason.



              The State relies upon State v. Gordon in arguing that the evidence was

admissible as an excited utterance, but that case is distinguishable from the instant case.

In Gordon, a child rape victim screamed in pain during urination. Gordon, 952 S.W.2d

at 821. When her mother examined the child, she discovered tears and dried blood in

the vaginal area. Id. She asked the child who had hurt her, and the child identified the

defendant. Id. In ruling the victim’s statement admissible, the Gordon court determined

that the startling event was the painful urination and noted that the startling event was

related to the underlying sexual offense. Id. In the instant case, there is no showing that

the startling event was related to the offense with which the defendant was charged. The

ambiguity of the victim’s nonverbal statement simply prevented the probative value from

outweighing the prejudicial effect. Tenn. R. Evid. 403.



              Even so, any resulting error was harmless in light of the defendant’s



                                            13
admissions to Detective Smithson and Ms. McWilliams that he burned the victim, albeit

accidentally. Accordingly, we will not reverse the defendant’s conviction on this ground.

Tenn. R. Crim. P. 52(a)(stating, “No judgment of conviction shall be reversed on appeal

except for errors which affirmatively appear to have affected the result of the trial on the

merits.”).



              Finally, the defendant argues that the trial court erred in ruling that

testimony from educators would be admissible only if the defendant first testified. At the

conclusion of the State’s evidence, the defendant announced he intended to call to the

witness stand two or three educators from his high school to testify that the defendant’s

mental ability was below average and he could be easily led or manipulated by others.

Defense counsel represented he intended to show that Ms. McWilliams or Detective

Smithson led him to make his statements to the police in order to explain why he

confessed to burning the victim.       The State objected on the basis of relevance,

maintaining that the defendant must first lay a foundation by putting the defendant on the

witness stand to testify that the statements he gave were untrue and that he was

manipulated into giving inaccurate statements. The trial court agreed with the State,

ruling that the educators’ testimony would not be relevant unless the defendant first

testified that his statements were inaccurate and/or that he was manipulated into giving

those statements. After a brief recess, the defendant announced he would not be

testifying, and he offered no other proof. Thus, the educators’ testimony was not

admitted into evidence.



              We recognize the longstanding rule in Tennessee that once a confession

is admitted into evidence, a jury may hear evidence concerning the circumstances under

which the confession was procured in order to determine whether the defendant made



                                            14
the confession and whether it is true. See State v. Pursley, 550 S.W.2d 949, 950, 952

(Tenn. 1977); Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, 333 (1944). This rule,

however, is inapplicable here because the proffered testimony did not relate to the

circumstances under which the confession was procured. In other words, the educators

could not testify that the defendant was manipulated into giving a false confession or

inaccurate statement; they could only testify that the defendant, in theory, could be

manipulated because of below average verbal intelligence. Had the defendant sought

to introduce evidence linking the educators’ testimony to the circumstances surrounding

the defendant’s statement---for instance, testimony from Ms. McWilliams or some other

witness, including the defendant himself, that the defendant was convinced by a third

party to falsely confess---then the educators’ testimony would have been relevant.

Because the defendant did not offer any such evidence, however, the educators’

testimony was not relevant, and we find no error in the trial court’s refusal to admit it. See

Tenn. R. Evid. 401, 402.



              In sum, the defendant has not shown reversible error. Accordingly, the trial

court’s judgment is affirmed.



                                                   _______________________________
                                                   JOHN H. PEAY, Judge


CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge



                                             15
