            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       August 14, 2002 Session

                      STATE OF TENNESSEE v. DENNIS PYLANT

                   Direct Appeal from the Circuit Court for Cheatham County
                             No. 13469    Allen W. Wallace, Judge



                         No. M2001-02335-CCA-R3-CD - Filed May 8, 2003


The appellant, Dennis Pylant, was found guilty in the Cheatham County Circuit Court of felony
murder committed in the perpetration of aggravated child abuse.1 The appellant received a sentence
of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant raises
several issues for our consideration, namely the sufficiency of the evidence, evidentiary issues, and
a complaint regarding the jury instructions. Upon review of the record and the parties’ briefs, we
affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

James Robin McKinney, Jr., and John David Moore, Nashville, Tennessee, for the appellant, Dennis
Pylant.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                  OPINION

                                      I. Factual Background
               The appellant was charged by presentment by the Cheatham County Grand Jury with
the felony murder of Stephen Joe Davis, III, a child less than three years old, during the perpetration
of aggravated child abuse. At trial, which began on April 23, 2001, the State first called the victim’s
father, Stephen Joe Davis, Jr. Stephen Davis testified that the victim’s birthday was September 25,



        1
           The offense as listed in Tennessee Code Annotated section 39-13-202(a)(2) (1997) is first degree murder
com mitted in the perpetra tion of any one of a list of enumerated felonies, including aggravated child abuse.
1996. Stephen and Amanda Davis also had a younger child named Jacob.2 After a brief marriage,
the two divorced. Subsequently, Amanda Davis moved to Cheatham County. At trial, Stephen
Davis identified a picture of the two-year-old victim. Stephen Davis noted that Amanda Davis came
to the funeral home to pay her respects to her son, but he did not see her at the burial. Stephen Davis
did not know if the appellant attended either the funeral or the burial.

                The next witness was George James Tucker, Jr. Tucker lived at 1024 Jane Circle in
Cheatham County. 3 He testified that in September 1999, the appellant and Amanda Davis were his
neighbors across the street. Shortly before 10:00 a.m. on September 24, 1999, Tucker was working
in his garage with his father when Amanda Davis came “screaming” and “yelling” into his yard.
Amanda Davis implored Tucker to call 911 because she could not awaken her baby. Tucker noted
that Amanda Davis was “real hysterical.” Tucker instructed his father to call 911 while he
accompanied Amanda Davis to her home to check on the baby. When Tucker entered Amanda
Davis’ mobile home, he observed an infant in a car seat in the living room. He inquired as to
whether that was the “baby” which concerned her. Amanda Davis replied in the negative, explaining
that she could not awaken her toddler who was in the bedroom. Tucker entered the victim’s
bedroom and noted that “it had long passed because it had already set up – rigor mortis had set up
in it, so I didn’t even try to move it.” He waited with Amanda Davis until the police and the
paramedics arrived. Tucker agreed that the 911 record reflecting that the call for help came in at
9:52 a.m. would have been accurate.

                Sean Greer of the Cheatham County Sheriff’s Department was dispatched on
September 24, 1999, to 1029 Jane Circle in Cheatham County. He arrived at the residence at 9:57
a.m., five minutes after he was dispatched. The paramedics arrived shortly after the officer. Officer
Greer entered the residence and made contact with Amanda Davis and Tucker. Officer Greer noted
that Amanda Davis “was weeping, but not irrational.” Tucker directed Officer Greer to the bedroom
where the victim was located. The officer and the paramedics entered the victim’s bedroom. Officer
Greer observed a toddler lying on his left side on a sleeping bag spread on top of the bed. The
paramedics determined that the victim was dead and Officer Greer “established a crime scene.”
Officer Greer led the paramedics to the front of the residence and formed a blockade at the front
door, effectively closing off half of the residence. Officer Greer requested that a detective from the
Criminal Investigation Division (CID) be sent to investigate. In response, Sergeant Duncan arrived
at the scene.

                Sergeant Floyd Duncan, Jr., an investigator with the CID of the Cheatham County
Sheriff’s Department, was called to 1029 Jane Circle on September 24, 1999, to investigate the
victim’s death. Prior to Sergeant Duncan’s arrival, other officers “contained” the scene. After his
arrival at 10:37 a.m., Sergeant Duncan “started to process the internal scene.” He observed that the


         2
             Stephen Davis testified that he later discovered that he was not Jacob’s biological father.

         3
            Thro ughout the reco rd, the address of the offense is referred to as “Jane Circle” or as “James Circle.” For
the sake of consistency, we have cho sen to emplo y the form er designation.

                                                           -2-
victim was lying on his left side as if he were asleep. The victim was “cold and rigid to the touch.”
There was no visible bleeding, but the victim had “sputum or vomit” with a vague reddish cast
around his mouth. Sergeant Duncan opined that the victim had choked or vomited while in the
reclining position. Sergeant Duncan took photographs of the crime scene, but those photographs
were lost when they were sent to the Wal-Mart photographic laboratory for processing.4

               Sergeant Duncan questioned Tucker about the events of that morning and was
informed that a distraught Amanda Davis ran to Tucker’s residence in order to call 911 for help for
her unresponsive toddler. Sergeant Duncan spoke with Amanda Davis who “was in an obvious state
of grief.” Amanda Davis was not very coherent, but she was capable of answering some brief
questions. Sergeant Duncan discovered that the victim suffered from low blood sugar and
sometimes refused to eat. Therefore, initially Sergeant Duncan believed that there could be a
medical reason for the victim’s demise.

               The victim’s body was transported to the office of Dr. Charles Harlan for an autopsy.
Subsequently, Dr. Harlan contacted Sergeant Duncan and informed him that the victim’s death was
a homicide. Accordingly, because there were other children in the home, Sergeant Duncan returned
to the scene and informed the Department of Children’s Services (DCS) of the suspicious death.
Additionally, Sergeant Duncan transported the victim’s body to Cheatham County Medical Center
for x-rays. The x-rays did not reveal the existence of prior abuse.

                On September 24, 1999, after receiving the call from Dr. Harlan indicating that the
victim’s death was a homicide, Sergeant Duncan requested interviews with the appellant and
Amanda Davis. Sergeant Duncan administered Miranda warnings to the appellant and, at 11:30
p.m., the appellant signed a waiver of his rights. Sergeant Duncan asked the appellant about
“whipping” the victim, and the appellant responded, “well, no, that’s just not the way [we do]
things.” The appellant explained, “[N]obody whips the children in the home.” Furthermore, the
appellant insisted that Amanda Davis “[a]bsolutely” did not whip the children because she “doesn’t
believe in whipping them.” Sergeant Duncan observed that prior to this interview, the appellant had
been at the police station with his sister. On that occasion, the appellant had also insisted that no one
in the home whipped the children.

               During the 11:30 p.m. interview, the appellant stated that Amanda Davis resided with
him as a live-in babysitter. The appellant’s eight-year-old daughter, Rebecca Pylant, lived in the
home as well as Amanda Davis’ two sons. On September 23, 1999, the appellant came home early,
at approximately 3:30 p.m. or 4:00 p.m., to care for the children while Amanda Davis went to the
Department of Human Services (DHS) to obtain food stamps. The appellant related that Amanda
Davis had been the only other adult with the children that day. The victim began crying upon
learning that Amanda Davis was leaving and continued to cry after she left. Approximately thirty
minutes after Amanda Davis’ departure, the appellant changed the victim’s “foul smelling” diaper;


        4
          Sergeant Duncan noted that it was a common practice of law enforcement agencies to have their photographs
processed at W al-M art.

                                                       -3-
yet, the victim continued to cry. The appellant asserted that he took the victim to the victim’s room
to attempt to interest him in playing with his toys. Sergeant Duncan noted that the appellant
grumbled that he had thought, “[H]ere I am baby sitting the baby sitter’s kids.” The appellant also
related that he heard the victim cry sometime between 8:00 p.m. and 9:00 p.m. on September 23,
1999.

                Sergeant Duncan recalled that he briefly spoke with the appellant’s daughter, Rebecca
Pylant, on the night that he questioned the appellant. However, Rebecca was very tired during the
conversation and the sergeant did not obtain much information from her. The appellant warned
Sergeant Duncan to be careful in talking to Rebecca because she did not like Amanda Davis and
“she’s liable to say anything.” Nevertheless, Sergeant Duncan opined that he would be able to
discern Rebecca’s truthfulness.

              After the victim’s death, Rebecca was sent to live with the appellant’s sister, Sheila
Wilson, but Sergeant Duncan “didn’t think that was a good idea at all.” Regardless, Sergeant
Duncan acknowledged that the appellant was not allowed to call his daughter and that all of his visits
with Rebecca were supervised by a DCS case worker.

              Sergeant Duncan related that on September 30, 1999, while he was on vacation,
Connie Adkinson with the Tennessee Bureau of Investigation (TBI) interviewed Rebecca.
Moreover, Sergeant Duncan noted that he did not conduct any more interviews with the appellant
because he would not talk and was difficult to locate. However, Sergeant Duncan interviewed
Amanda Davis on several more occasions. He observed that both the appellant and Amanda Davis
had been indicted by the Grand Jury, but he could not remember the nature of the charges against
Amanda Davis.

                 After Sergeant Duncan’s testimony, the trial was continued until the next day. Prior
to the recommencement of trial on the morning of April 24, 2001, the State asked permission to
recall Sergeant Duncan. The State proposed to have Sergeant Duncan explain that he was distracted
during trial the previous day because he was teaching a class and had prepared for another trial that
had been dismissed. Additionally, Sergeant Duncan would clarify the time frame regarding Amanda
Davis’ departure from the home on the day of the offense. The appellant objected to the recall of
this witness. After a brief jury out hearing, the trial court allowed Sergeant Duncan to be recalled
for the limited purpose of testifying regarding the time frame. On the stand, Sergeant Duncan related
that the appellant told him that Amanda Davis left the home at approximately 4:00 p.m. and returned
at 5:00 p.m. Additionally, Sergeant Duncan stated that the appellant informed him that the victim
continued to cry while Amanda Davis was gone.

               Next, the State called Dr. James Baldwin, the Cheatham County Medical Examiner.
Dr. Baldwin testified that he took the x-rays of the victim’s body. Dr. Baldwin related that the x-ray
was a “negative survey,” explaining that no new or old fractures were revealed.




                                                 -4-
                Rebecca Pylant testified that she remembered the day that the victim did not awaken.
She came home from school about 3:00 p.m. or 3:30 p.m. and did her homework by herself. The
State asked Rebecca if she remembered giving a statement to Connie Adkinson and Susan Roberts.
Rebecca answered in the negative. The appellant then objected to the State showing Rebecca her
statement. The trial court overruled the appellant’s objection. The State showed Rebecca her
statement and asked her to read the first portion. After silently reading the first page of the
statement, Rebecca acknowledged that she remembered talking with the two women. However, she
did not specifically remember what she told the women about her activities when she got home from
school. The State prompted Rebecca to read another portion of the statement. After she was
finished reading, Rebecca stated that she remembered doing her homework with Amanda Davis’
help. They did the homework at the kitchen table while the victim sat in the living room watching
a movie.

                Shortly thereafter, Amanda Davis left and the appellant “babysat” Rebecca and the
victim; Rebecca did not remember if Jacob was there. The victim cried “a lot.” Rebecca admitted
that his crying was annoying, but she never got mad at the victim. However, the appellant became
angry at the victim because of his crying. The victim cried while the appellant changed his diaper.
Rebecca testified that the victim did not always cry when he was having his diaper changed. The
State asked Rebecca to read another portion of her statement. Then the State asked if the victim
cried when his diaper was getting changed and Rebecca responded in the affirmative. She
acknowledged that the victim never “really” cried when Amanda Davis changed his diaper but
“mostly” cried when the appellant changed him. Rebecca remembered saying that the victim
“doesn’t cry when Amanda does it, but he does when my daddy changes him.”

                The victim continued to cry after his diaper was changed. Rebecca was in the living
room and the victim was in his bedroom. The appellant went into the victim’s bedroom and Rebecca
heard a noise. “It sounded like daddy spanking him.” Rebecca heard the noise twice, and she went
to the door of the victim’s bedroom to investigate. While standing in the doorway, Rebecca
observed the appellant holding the victim’s arms up in the air with one hand while spanking the
victim with the other hand. Rebecca saw the appellant strike the victim twice. Rebecca testified that
the spanking was hard enough that she heard it from the living room. The victim was crying but not
screaming. Rebecca noted that the appellant was mad while spanking the victim, but it was “[j]ust
usual mad.”

                Rebecca testified that the victim then came out of his room and went into the living
room. After questioning by the State, Rebecca stated that she did not remember saying in her
statement that the victim never came out of his room again after the spanking. She acknowledged that
the victim stopped crying at some point, but could not remember precisely when. She stated that the
victim stayed in his room until Amanda Davis came home, but then he came out of his room. The
State then instructed Rebecca to read a portion of her statement and asked if she remembered when
the victim stopped crying. In response, Rebecca stated that he stopped crying before Amanda Davis
came home. Rebecca further stated that there were no sounds coming out of the victim’s room after
Amanda Davis came home.


                                                 -5-
               Rebecca testified that the victim had previously been spanked by both the appellant
and Amanda Davis. Specifically, she maintained that someone other than the appellant also spanked
the victim on the day in question. The State directed Rebecca to read the portion of her statement
which indicated “that the only one who spanked [the victim] was daddy and you spelled it daddy.”
Subsequently, the following colloquy occurred:
               State: Now did you remember telling Ms. Adkinson that he only got
               one spanking that day?
               Rebecca: No.
               State: Okay. Didn’t you just read that?
               Rebecca: Yes.
               State: Okay. Doesn’t it say that he only got one spanking that day?
               Rebecca: Yes.
               State: And didn’t you say that daddy did the spanking?
               Rebecca: Yes.

                Rebecca acknowledged that she saw the appellant spanking the victim in the victim’s
bedroom. Upon noticing that Rebecca was watching the spanking, the appellant instructed Rebecca
to go to her room. Rebecca did not know why she was sent to her room; she had not done anything
wrong. She also did not see the victim do anything wrong.

               Rebecca explained that Amanda Davis went into the victim’s room later that night to
put Jacob into the crib that was located in the same room. However, the victim never got up and
Rebecca never saw the victim alive again.

               On cross-examination, Rebecca revealed that the first thing she saw when she came
home from school at 3:30 p.m. was Amanda Davis hitting the victim “hard” on his lower back four
times with a wooden spoon. After the “beating,” the victim stopped crying. However, he began
crying again when Amanda Davis left “[b]ecause he didn’t want his mom to leave.” Upon further
questioning, Rebecca clarified that she saw the appellant spank the victim with an open hand on his
bottom, not on his back. The victim was wearing his diaper during the spanking. Rebecca noted that
Amanda Davis checked on the victim when she got home but did not wake the victim for dinner.

                Rebecca averred that the victim did not eat anything or have any juice that night. In
a statement she gave on September 24, 1999, Rebecca stated that before Amanda Davis left, she was
so angry at the victim because he would not eat that she “snatched him up by the arms and put him
to bed.” Rebecca admitted that in her September 30 statement, she did not mention Amanda Davis
hitting the victim with a spoon. She acknowledged that she told Sergeant Duncan on October 15,
1999, about the spoon incident. Rebecca maintained that Amanda Davis never hit her with a spoon
and never threatened to hit her. However, Rebecca stated that she had been spanked by the appellant.
Rebecca agreed that she had testified at pretrial hearings about Amanda Davis hitting the victim with
a spoon. At one hearing, she estimated that the beating lasted five or ten minutes.




                                                -6-
                Next, Randell Anderson, detective and chief captain,5 testified that he interviewed the
appellant on September 30, 1999, while Sergeant Duncan was on vacation. DCS worker Susan
Roberts and TBI agent Connie Adkinson were also present. During the interview, the appellant
became agitated when Adkinson began talking about Rebecca because he had been separated from
his daughter. The women left the room and Captain Anderson asked the appellant about the victim.
The appellant related that the victim had been to the doctor about a blood sugar problem and also
stated that the victim would not eat. The appellant maintained that Amanda Davis did not “believe
in” disciplining the victim and explained that “she’d make popping noises with her hand.” Captain
Anderson further explained, “He held his hand up and just said she would smack his bottom like that
just to make popping noises. She would draw her hand back.” The appellant informed Captain
Anderson that Amanda Davis would not let him discipline the victim.

               Susan Furlow, an employee of DHS, testified that Amanda Davis had an appointment
with her at 4:00 p.m. on September 23, 1999. Amanda Davis arrived at the office at approximately
4:30 p.m. Furlow observed that at the time of the meeting, Amanda Davis was living at 1029 Jane
Circle in Cheatham County, which address was located ten minutes away from the DHS office. The
interview pertained to Amanda Davis’ application for food stamps. Her demeanor was “fairly
normal.” Furlow talked with her about forty minutes and Amanda Davis left the DHS office at
approximately 5:10 p.m.

               Finally, the State called Dr. Charles Warren Harlan, an expert in forensic pathology.
Dr. Harlan performed the autopsy on the victim and discovered “two lacerations of the gastric
mesentery, 100% laceration disruption of the root of the mesentery, splanchnic vasoconstriction of
the ileum; and hemoperitoneum of 520 cc. which is about one and a third pints of blood in the
abdomen or belly.” Dr. Harlan related that one and one thirds pints of blood is about half the amount
of blood that would be found in a child the victim’s age and size. In sum, the ultimate conclusion of
the autopsy was that the victim bled to death.

              Dr. Harlan explained that “[t]he injuries are to the back of the abdomen.” The victim
had red contusions on the back of the abdomen and had “yellow fluid coming from the nose and
mouth.” Specifically, Dr. Harlan related that
              in the abdomen we have multiple tears of the mesentery. The
              mesentery is a structure composed of fat and the fibrous connected
              tissue. The stuff that holds us together; and it contains arteries, veins
              and nerves.

                 In this particular case, . . . there are two lacerations or tears of the
                 mesentery supplying the blood supply to the stomach. The stomach is
                 called the gastric, as the adjective form of it.




       5
           The record does not indicate for which law enforcement agency Captain Anderson worked.

                                                      -7-
                The mesentery then showed a 100% disruption or laceration of the root
                of the mesentery. That’s – if you have a fan such as a fan that you
                would have used, perhaps, in church, that would fold open . . . , the
                bottom part of it where the fan arms come together would be called the
                root; and that is torn completely in two; and that is located just above
                the back bone in the middle of the body.

                ....

                There is also splanchnic vasoconstriction of the ileum which is the
                small intestine and that is caused by the loss of the blood supply of the
                arteries and veins to that area, to the small intestine; then there is
                bleeding from the torn arteries and veins located at the root of the
                mesentery.

                Dr. Harlan also discovered one-third of a pint of brown mush with a chili-like smell
in the stomach. He estimated that the death occurred two to twelve hours after the time of the injury
and noted that the disruption in the victim’s digestion provided clues as to the time of death. Relating
to the reddish contusions on the back of the victim’s abdomen, Dr. Harlan maintained that the injuries
were caused by a cylindrical object such as a pin, a rod, a baseball bat, a lead pipe, the edge of a hand,
or fingers. The injuries were caused by one to three blows to the body. Again, he stated that the
cylindrical marks could have been caused by “the area of the palm or the little finger,” explaining that
“[t]he fingers are cylindrical objects and the edge of the palm is also a half cylinder.” Dr. Harlan
further related that three open hand blows to the back could cause the mesentery to tear. He stated
that a wooden spoon could conceivably have caused the wounds if the spoon was applied with enough
force, but Dr. Harlan expressed that the wounds were more consistent with a blow from a hand.
However, three open hand blows to the buttocks would not cause the fatal injuries because that was
the wrong area of the body. Dr. Harlan concluded his testimony by stating that rigor mortis would
set in approximately six hours after death.

               As defense proof, the appellant entered into evidence the presentment charging
Amanda Davis with the felony murder of the victim. The appellant also entered into evidence
Amanda Davis’ plea of nolo contendere to child neglect, a Class D felony. Finally, the appellant
entered the judgment of conviction against Amanda Davis reflecting that she received a four year
sentence.

                At the conclusion of the proof, the appellant requested that no lesser-included offenses
be charged to the jury. The trial court denied the appellant’s request. After deliberation, the jury
found the appellant guilty of the felony murder of the victim during the perpetration of aggravated
child abuse. The appellant was sentenced to life imprisonment. On appeal, the appellant raises the
following issues: (1) whether the evidence was sufficient to support the appellant’s conviction for
felony murder; (2) whether the trial court erred in not granting the appellant’s motion for judgment
of acquittal; (3) whether the trial court erred in not granting the appellant’s motion for a bill of


                                                   -8-
particulars; (4) whether the trial court erred in improperly allowing prior statements of the minor
child, Rebecca, into evidence; (5) whether the trial court erred in allowing the State to recall Sergeant
Duncan; and (6) whether the trial court erred in failing to instruct the jury on the lesser-included
offense of facilitation of felony murder.6

                                               II. Analysis
                                          A. Bill of Particulars
                 The appellant argues that the trial court should have granted his pretrial motion for a
bill of particulars. However, such motion and any proceedings related thereto are not included in the
appellate record for our review.7 Tennessee Rule of Appellate Procedure 24(b) is clear:
                 [T]he appellant shall have prepared a transcript of such part of the
                 evidence or proceedings as is necessary to convey a fair, accurate and
                 complete account of what transpired with respect to those issues that
                 are the bases of appeal.
The failure to follow the dictates of this rule results in the waiver of the related issues and allows this
court to presume that the trial court was correct in its ruling. Thompson v. State, 958 S.W.2d 156,
172 (Tenn. Crim. App. 1997). Accordingly, we will not address this issue.

                                        B. Recall of Duncan
                 The appellant complains, “[t]he trial court erred allowing the State of Tennessee to
reopen the proof to allow [Sergeant] Floyd Duncan, Jr. to testify. . . . [Sergeant] Duncan was recalled
to testify as to why he was distracted and why his testimony the day prior was suspect.”

               As we noted in the facts, Sergeant Duncan was the last witness to testify at trial on
April 23, 2001. The next morning, the State requested the trial court’s permission to recall Sergeant
Davis to explain why he was “distracted” during the previous day’s testimony. Additionally, the State
wished to have Sergeant Duncan clarify when Amanda Davis left and returned to the home. The
appellant objected to the recall of Sergeant Duncan. After a jury-out proffer, the trial court allowed
Sergeant Duncan to be recalled for the sole purpose of establishing when Amanda Davis was absent
from the home. Contrary to the appellant’s assertion, on recall Sergeant Davis testified only
concerning the appellant’s statement that Amanda Davis left at 4:00 p.m. on September 23, 1999, and
returned at 5:00 p.m.

                This court has observed that “the decision of whether to reopen the proof for further
evidence is within the discretion of the trial court, and the decision of the trial court will not be set
aside unless there is a showing that an injustice has been done.” State v. Brock, 940 S.W.2d 577, 580
(Tenn. Crim. App. 1996). In the instant case, the State had just concluded examination of Sergeant

         6
             We shall address these issues in a different order than that in which they were raised.

         7
            The sole mention in the record concerning the appellant’s motion is an order of the trial court stating that “the
Motion for Bills of Particulars is not well taken and should be denied.” We take this opportunity to note that the State,
not the appellant, directed our attention to this order. In co ntravention of Tennessee Rule of Appellate Procedure
27(a)(7), the appellant provided no suc h citation to the record .

                                                             -9-
Duncan the previous afternoon. The next morning, the trial court allowed a brief recall of Sergeant
Duncan to clarify times which had been mentioned in his previous testimony. There has been no
prejudice to the appellant in this instance. Accordingly, we conclude that the trial court did not abuse
its discretion in permitting the State to recall the witness and as a result of the recall there was no
injustice done to the appellant. This issue is without merit.

                                 C. Rebecca Pylant’s Prior Statement
                The appellant next contends that the trial court erred in allowing the State to use
Rebecca Pylant’s prior statement during her testimony and further erred when it allowed the contents
of the statement to be used as substantive evidence. The appellant further contends that the statement
fell under the auspices of Tennessee Rule of Evidence 613 regarding prior inconsistent statements.
According to the appellant, the State did not lay a proper foundation under Rule 613 and, if the
admission of the statement was proper,8 the trial court should have instructed the jury that the
statement could be considered for impeachment purposes only.

                Tennessee Rule of Evidence 613 provides:
                (a) In examining a witness concerning a prior statement made by the
                witness, whether written or not, the statement need not be shown nor
                its contents disclosed to the witness at that time, but on request the
                same shall be shown or disclosed to opposing counsel.
                (b) Extrinsic evidence of a prior inconsistent statement by a witness is
                not admissible unless the witness is afforded an opportunity to explain
                or deny the same and the opposite party is afforded an opportunity to
                interrogate the witness thereon, or the interests of justice otherwise
                require.
Any prior inconsistent statement admitted under this rule should be used only for impeachment
purposes; it should not be used as substantive evidence. Neil P. Cohen et al., Tennessee Law of
Evidence, § 6.13[2][b], at 6-131 (LEXIS publishing, 4th ed. 2000). However, the inconsistent
statement may be used as substantive evidence if it were admissible under some other rule of
evidence. Id. at 6-132. From our thorough review of the record, we can find no instances where the
State used Rebecca’s prior statement to impeach her trial testimony. Moreover, we can discern no
logical reason for the State to attack the credibility of the pivotal witness against the appellant.

                However, another rule of evidence is applicable to the use of Rebecca’s prior
statement. Tennessee Rule of Evidence 612 is typically referred to as the rule governing present
recollection refreshed. “For present recollection refreshed, the witness’s memory is successfully
restored and the witness testifies from present memory. This does not involve hearsay because the
witness is not testifying about a prior statement, but rather is relating what is in the witness’s current
memory.” Cohen, Tennessee Law of Evidence, § 8.10[2][b], at 8-92.


         8
            W e note that bo th the ap pellant and the State frame the argum ent in term s of the ad mission of the statement.
This is not quite accurate. While some of the contents of the statement were discussed during the examination of
Reb ecca, the statem ent itself was never adm itted into evidence.

                                                            -10-
                The advisory commission comments to Rule 612 advise that “[o]nly if a witness’s
memory requires refreshing should a writing be used by the witness. The direct examiner should lay
a foundation for necessity, show the witness the writing, take back the writing, and ask the witness
to testify from refreshed memory.” Tenn. R. Evid. 612, Advisory Commission Comments. In other
words, to justify the use of a writing to refresh a testifying witness’s recollection pursuant to Rule
612, an attorney must demonstrate that it is necessary to refresh the witness’s memory and that the
writing will provide the necessary refreshing. See State v. Mathis, 969 S.W.2d 418, 421 (Tenn. Crim.
App. 1997). Additionally, we note that a leading treatise has suggested that the necessary foundation
“can be provided by the witness’s incomplete testimony.” Cohen, Tennessee Law of Evidence, §
6.12[4][b], at 6-128.

                 We acknowledge that during some instances of questioning, Rebecca did not maintain
that she did not remember the events underlying the State’s questions. However, in each instance in
which her prior statement was used, it became obvious through Rebecca’s testimony that she did not
clearly remember the details of the events. The State asked Rebecca to read portions of her statement,
and then asked Rebecca questions regarding the events mentioned in the part of the statement
Rebecca just read. Rebecca was able to independently testify of her own recollection after her
memory was refreshed by reading her previous statement. See State v. Carpenter, 773 S.W.2d 1, 10
(Tenn. Crim. App. 1989); State v. Stanley Lawson, No. 01C01-9607-CR-00320, 1997 WL 661483,
at *8 (Tenn. Crim. App. at Nashville, Oct. 24, 1997). This is the type of situation envisioned by Rule
612. See Mathis, 969 S.W.2d at 421. Accordingly, we conclude that there was no error in allowing
the State to refresh Rebecca’s memory using her previous statement and, furthermore, there was no
error in using Rebecca’s testimony as substantive evidence. See State v. Harrison Pearson, No.
03C01-9802-CR-00076, 1999 WL 692877, at *5 (Tenn. Crim. App. at Knoxville, Aug. 31, 1999).

                                      D. Lesser-Included Offense
                The appellant contends that the trial court erred in failing to instruct the jury on the
lesser-included offense of facilitation of felony murder.9 Notably, the appellant’s entire argument on
appeal is as follows:
                The Trial Court erred in not charging facilitation of Felony Murder in
                that the decedent’s mother, Amanda Davis, was charged with Felony
                Murder in the superceding indictment. The proof was clear that Ms.
                Davis spanked the decedent child with a spoon prior to the Appellant
                arriving at the residence. State v. Fowler, 23 S.W.3d 285 (Tenn.[]
                2000) and State v. Burns, 6 S.W.3d 453 (Tenn. 1999), warrants the
                lesser-included charge.

               We note that a trial court’s decision regarding whether to charge a jury regarding a
lesser-included offense is a mixed question of law and fact, which decision this court will review de


         9
           The trial court instructed the jury on the charged offense of felony murder in the perpetration of aggravated
child abuse and on the lesser-included offenses of second degree murder, voluntary manslaughter, reckless homicide,
criminally negligent hom icide, aggravated child ab use, child abuse, aggravated assault, and assault.

                                                          -11-
novo with no presumption of correctness. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001).
Interestingly, the record reflects that prior to the reading of the jury charge, the appellant requested
that the trial court charge no lesser-included offenses. Nevertheless, the trial court correctly observed
that it was required to charge the jury on the lesser-included offenses. Specifically, Tennessee Code
Annotated section 40-18-110(a) (1997) mandates that a trial court must charge the jury as to the law
of each offense which is “included” in an indictment, namely the charged offense and any lesser-
included offenses, regardless of a defendant’s request for such an instruction. “In applying the lesser-
included offense doctrine, three questions arise: (1) whether an offense is a lesser-included offense;
(2) whether the evidence supports a lesser-included offense instruction; and (3) whether an
instructional error is harmless.” State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002). In Burns, 6
S.W.3d at 466-67, our supreme court outlined the test for determining when an offense may be
considered a lesser-included offense of an indicted offense.

              Burns specifically designates facilitation of the charged offense as a lesser-included
offense. 6 S.W.3d at 467. In fact, our supreme court has explicitly acknowledged that facilitation
of felony murder is a lesser-included offense of felony murder. State v. Ely, 48 S.W.3d 710, 720
(Tenn. 2001), cert. denied, 534 U.S. 979, 122 S. Ct. 408 (2001). Further, in State v. Locke, 90
S.W.3d 663, 672 (Tenn. 2002), our supreme court explained that
              [f]acilitation, however, unlike lesser degrees of homicide is not an
              immediately lesser offense of felony murder under part (b) of the
              Burns test. In fact, facilitation is a separate and distinct theory of
              liability from that of a principal offender or someone who is criminally
              responsible for the conduct of another.

               “A person is criminally responsible for the facilitation of a felony if, knowing that
another intends to commit a specific felony, but without the intent required for criminal responsibility
under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.” Tenn. Code Ann. § 39-11-403(a) (1997). Moreover, in State v. Lewis, 919 S.W.2d 62, 68
(Tenn. Crim. App. 1995), overruled on other grounds by State v. Williams, 977 S.W.2d 101 (Tenn.
1998), this court noted that
               knowledge of the specific felony required under Tennessee Code
               Annotated section 39-11-403 is met in a felony murder prosecution not
               by knowledge of the felony murder, but by the knowledge that the
               other person was going to commit the underlying felony. In the case
               sub judice, the Defendant could be guilty of facilitation of felony
               murder because he knew his co-defendant was planning on committing
               a robbery, which is the underlying felony of the felony murder.
Therefore, we must now determine whether the evidence supports an instruction on facilitation of
felony murder.

                A trial court is not required to charge an offense simply because it is a lesser-included
offense of the charged offense. “Whether or not a particular lesser-included offense should be
charged to the jury depends on whether proof in the record would support the lesser charge.” Burns,


                                                  -12-
6 S.W.3d at 468. If the instruction is warranted by the evidence, the trial court must instruct the jury
on all lesser-included offenses regardless of any theory proposed by either the defense or the State.
State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002). In determining whether the lesser-included
offense should be charged, “the trial court must view the evidence liberally in the light most favorable
to the existence of the lesser-included offense without making any judgments on the credibility of
such evidence.” Burns, 6 S.W.3d at 469.

                 In the instant case, we can find no facts which would support a charge of facilitation
of felony murder. Rebecca testified that she saw Amanda Davis hit the victim with a spoon when she
came home from school. The victim stopped crying after being struck. The appellant told Sergeant
Duncan that he came home at about 4:00 p.m. or 4:30 p.m. and that Amanda Davis left shortly
thereafter. Rebecca maintained that approximately thirty minutes after Amanda Davis left, the
appellant changed the victim’s diaper. After his diaper was changed, the victim continued to cry.
According to Rebecca, the appellant went to the victim’s bedroom and repeatedly and forcefully
spanked the victim. Dr. Harlan explained that the victim’s death occurred from blunt trauma to the
back of his abdomen. Based upon the foregoing facts, there were two possible scenarios: a conviction
based upon the appellant’s guilt as principal or an acquittal. Fowler, 23 S.W.3d at 289. Thus, we
conclude that there is no proof in the record that the appellant knew that Amanda Davis intended to
commit aggravated child abuse on the victim and furnished substantial assistance in the commission
of the aggravated child abuse without the intent required for criminal responsibility. See Tenn. Code
Ann. § 39-11-403(a). Accordingly, the trial court did not err in failing to charge the jury on
facilitation of felony murder.

                                    E. Sufficiency of the Evidence
                In the appellant’s final two issues, he questions whether the evidence adduced at trial
was sufficient to support his conviction and he complains that the trial court erred in not granting his
motion for judgment of acquittal. This court has observed that “[t]he standard by which the trial court
determines a motion for judgment of acquittal at the end of all the proof is, in essence, the same
standard which applies on appeal in determining the sufficiency of the evidence after a conviction.”
State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000). Accordingly, we will address
the appellant’s final complaints as a challenge to the sufficiency of the evidence.

                On appeal, the appellant, having been convicted by a jury, is presumed guilty. State
v. Suttles, 30 S.W.3d 252, 260 (Tenn. 2000). Thus, the burden falls upon the appellant to
demonstrate why the evidence is insufficient to support the jury’s findings. Id. Evidence is
considered insufficient when no reasonable trier of fact could have found the essential elements of
the offense in question beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979); Tenn. R. App. P. 13(e).

                Moreover, as a result of the appellant’s conviction, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Cottrell, 868 S.W.2d 673, 675 (Tenn. Crim. App. 1992). Additionally, we note that “[t]he weight



                                                   -13-
and credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the triers
of fact.” State v. Manning, 909 S.W.2d 11, 13 (Tenn. Crim. App. 1995).

                In order to sustain the appellant’s conviction for felony murder, the State was required
to prove that the appellant killed the victim in the perpetration of aggravated child abuse. Tenn. Code
Ann. § 39-13-202(a)(2) (1997). We note that “intent to kill is not required under the felony murder
statute[; however], the perpetrator must possess the requisite intent to commit the underlying felony
for a felony murder conviction to be sustained.” State v. John Dennis Rushing, No. 01C01-9501-CR-
00020, 1996 WL 63920, at *6 (Tenn. Crim. App. at Nashville, Feb. 13, 1996). In other words, a
conviction of felony murder requires only a showing of a killing during the perpetration of an
underlying felony and does not require premeditation or intent to kill. See Tenn. Code Ann. § 39-13-
202(a)(2).

               As we noted earlier, aggravated child abuse is the felony underlying the appellant’s
felony murder conviction. Aggravated child abuse is defined as the commission of child abuse when
the “act of abuse results in serious bodily injury to the child.” Tenn. Code Ann. § 39-15-402(a)(1)
(1997). A person commits child abuse “who knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury.” Tenn. Code Ann. § 39-15-
401(a) (1997).

                The proof adduced at trial demonstrated that the appellant became angry when the
victim would not stop crying after Amanda Davis left the residence. The appellant changed the
victim’s particularly “foul smelling diaper” and yet the victim would not be quiet. The appellant
hoisted the victim’s arms over the victim’s head and spanked the victim so hard that Rebecca could
hear the blows from the living room. After the spanking, the victim did not come out of his room
again. Dr. Harlan testified that the blows causing the child’s death were hard enough to completely
tear the root of the victim’s mesentery. Upon questioning by the police, the appellant repeatedly
denied spanking the victim on any occasion and staunchly maintained that Amanda Davis would not
spank the victim because she did not “believe in whipping them.” However, Rebecca testified that
both the appellant and Amanda Davis had spanked the children. We conclude that this proof is
sufficient to sustain the appellant’s conviction. See State v. Hodges, 7 S.W.3d 609, 620-21 (Tenn.
Crim. App. 1998).

                We also note that the appellant complains on appeal that “[t]he State did not prove
venue, the identity of the defendant or the age of the decedent child.” We disagree. As we recounted
in our recitation of the facts, numerous witnesses testified that the offenses occurred in Cheatham
County, several witnesses indicated that the victim was two years of age, and the witnesses also
designated “Dennis Pylant” as the appellant. See State v. Smith, 926 S.W.2d 267, 269 (Tenn. Crim.
App. 1995) (explaining that venue need only be proved by a preponderance of the evidence); State
v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (establishing that the jury as the trier of fact
determines issues regarding witness credibility, the weight and value to be afforded the evidence and
all accompanying factual issues); State v. Danny R. Morris, No. 01C01-9506-CC-00206, 1996 WL



                                                 -14-
233989, at *2 (Tenn. Crim. App. at Nashville, May 9, 1996) (stating that “[a] courtroom identification
is not a prerequisite to a conviction for a criminal offense”). This issue is without merit.

                                         III. Conclusion
               Finding no reversible error, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




                                                -15-
