              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                              FILED
                                                                           January 28, 2000
                             DECEMBER 1999 SESSION
                                                                          Cecil Crowson, Jr.
                                                                         Appellate Court Clerk


STATE OF TENNESSEE,               )
                                  )
             Appellee,            )      No. E1999-00919-CCA-R3-CD
                                  )
                                  )      Rhea County
v.                                )
                                  )      Honorable Buddy D. Perry, Judge
                                  )
RICKY LEE TURNER,                 )      (Aggravated child abuse and child abuse)
                                  )
                                  )
             Appellant.           )


For the Appellant:                       For the Appellee:

Carol Ann Barron                         Paul G. Summers
264 Third Avenue                         Attorney General of Tennessee
Dayton, TN 37321                                and
                                         Mark E. Davidson
                                         Assistant Attorney General of Tennessee
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         James Michael Taylor
                                         District Attorney General
                                         265 Third Avenue, Suite 300
                                         Dayton, TN 37321




OPINION FILED:____________________



AFFIRMED
Joseph M. Tipton
Judge




                                      OPINION



             The defendant, Ricky Lee Turner, appeals as of right from his convictions

following a jury trial in the Rhea County Circuit Court for aggravated child abuse, a
Class A felony, and child abuse, a Class D felony, of his daughters who were under six

years of age. The defendant was sentenced to twenty years in the custody of the

Department of Correction for the aggravated child abuse conviction and two years for
the child abuse conviction, to be served concurrently. He raises the following issues:

             1. whether the evidence is sufficient to support the aggravated
             child abuse conviction;

             2. whether the trial court erred by allowing the defendant’s
             statement to police to be admitted into evidence;

             3. whether the trial court erred by allowing two expert
             witnesses to testify that the victims’ injuries were the result of
             child abuse; and
             4. whether the trial court erred by not sentencing the
             defendant as an especially mitigated offender and by applying
             an excessive sentence.

We affirm the judgments of conviction.


             The defendant was convicted of the aggravated child abuse of his

daughter, L.T., and the child abuse of his other daughter, S.T. At trial, Dr. Beth Ann

Casady, a family practitioner, testified that the Department of Human Services

requested that she examine the victims on January 22, 1998. She testified that L.T.

had a burn on her arm that was about three and one-half inches long, with three blisters

which were crusting over. She said that S.T. also had a burn on her arm that was about

one and one-half centimeters by one-half centimeter. Dr. Casady stated that both
burns were second degree. She testified that the victims’ burns would have been

extremely painful and that the pain would have lasted two to three days without

medication. Dr. Casady testified that she had treated the children regularly and had
noticed that the children appeared neglected but not abused.



             Dr. Casady testified that she examined a list of medication the defendant
was taking for Parkinson’s Disease. She testified that a possible side effect of two of

the medications is confusion. She testified that everyone reacts to medication

differently and that the defendant had never seemed confused when she talked with

him.


             Dr. James Nelson, a pediatrician, testified that he reviewed the victims’

records, including photographs of their injuries which were admitted into evidence. He

                                             2
testified that the burns appeared to be second degree and would have been very

painful. He also testified that the defendant’s medication could possibly cause

someone to say something they normally would not.


              Mike Owenby, an investigator with the Rhea County Sheriff’s Office,

testified that he was dispatched to the defendant’s home on January 21, 1998, and that
he interviewed the defendant. He testified that he informed the defendant of his

Miranda rights and that the defendant seemed lucid and appeared to understand. He

testified that he read a rights waiver to the defendant because the defendant said he
could not read. He said he asked the defendant several times if he understood, and

the defendant said that he did. Deputy Owenby testified that he spoke with the

defendant for two hours and that the defendant did not appear to be hallucinating or
having any difficulty thinking. He stated that before the interview, he asked the

defendant if he was taking any medication that would prevent him from being able to

participate in the interview, and the defendant said he was taking medication for

Parkinson’s Disease.



              Deputy Owenby testified that the defendant gave different versions of

what happened to the victims. He said that the defendant initially stated that the

children were burned on a wood stove at their grandmother’s house. He said the
defendant later told him that the children tripped and fell against the stove at his house.



              Beverly Switter testified that she was a case manager for the Department
of Children’s Services and was present during the interview with the defendant and

Officer Owenby. She said the defendant did not appear to be under the influence of

any intoxicant during the interview. She said the defendant initially stated that L.T.
burned her arm at her grandmother’s house. She said he later stated that the victims

fell into a heater at home. She testified that the defendant finally gave a statement in

which he admitted holding the victims’ arms against a kerosene heater. She stated that

because the defendant could not write well, she wrote the statement for the defendant,
and the defendant signed it. The statement was admitted into evidence and provides

as follows:



                                             3
               Monday night (1-19-98) [S.T.] and [L.T.] were running through
               the kitchen. I was sitting at the kitchen table. I told them to
               stop running but they would not listen so I grabbed [S.T.’s] right
               arm and pushed it into the kerosene heater to show her how
               bad she could get burned if she fell into the heater. I
               accidentally held her hand on the heater too long. I did not
               mean for her to get burned that bad. [L.T.] was running behind
               [S.T.] A few minutes later [L.T.] was running back and forth in
               front of the heater. I grabbed [L.T.’s] right arm and held it on
               the kerosene heater to show her how bad the heater could hurt
               her so she wouldn’t go around it anymore. I accidentally held
               her arm on the heater a minute or two too long. It was probably
               two minutes maximum. I did not mean to burn [L.T.] that bad.
               The girls would not have gotten burned if I had not done this.
               I did this to show them what the dangers are of the heaters. I
               did this just for discipline. I lost control. The kids were getting
               on my nerves. I have a nervous disorder.


               Mary Miles, the defendant’s mother, testified that the defendant’s mind is

not right and that he will say anything he is told to say. She testified that the defendant
has become worse since he began taking medication. Ms. Miles stated that she had

never seen the defendant spank his children. She admitted telling Ms. Switter that she

showed all of her children the dangers of a kerosene heater, but she denied saying that

she burned the defendant and that he still has a scar.



               Ms. Switter was recalled and testified that a note in her file documented a

conversation she had with Ms. Miles. She said the note reflected that Ms. Miles told her

that “she did all her kids that way growing up” to show them what a heater could do and
that the defendant still has a scar from where she burned him. Based upon the

foregoing evidence, the jury convicted the defendant of aggravated child abuse and

child abuse.


                           I. SUFFICIENCY OF THE EVIDENCE

               The defendant contends that the evidence is insufficient to support his
conviction for aggravated child abuse. He argues that the state failed to establish the

corpus delicti in that the only evidence of criminal agency is from the defendant’s

uncorroborated inculpatory statement. The state contends that the evidence is

sufficient to support the conviction.


               Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing the evidence in the light most favorable to the

                                               4
prosecution, 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, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).


              The defendant argues that the state failed to establish the corpus delicti of

the crime because the only evidence of criminal agency comes from the defendant’s
uncorroborated inculpatory statement. Literally, corpus delicti means “the body of the

crime.” State v. Shepherd, 862 S.W .2d 557, 564 (Tenn. Crim. App. 1992). The two

elements necessary to prove the corpus delicti are (1) that a certain result has been
produced, and (2) that some person is criminally responsible for the act. See Wooten

v. State, 203 Tenn. 473, 481, 314 S.W.2d 1, 5 (Tenn. 1958). Our supreme court has

held that:

              while the corpus delicti cannot be established by confessions
              alone, yet the confessions may be taken in connection with
              other evidence, direct or circumstantial, corroborating them,
              and, if from all of the evidence so considered together the
              corpus delicti and the guilt of the person with reference thereto
              is established beyond a reasonable doubt, it is the duty of the
              jury to convict.

Ashby v. State, 124 Tenn. 684, 697-98, 139 S.W . 872, 875 (Tenn. 1911).



              This court has previously considered whether an inculpatory confession

was sufficiently corroborated to establish the criminal agency component of the corpus

delicti. See State v. Ervin, 731 S.W.2d 70, 72 (Tenn. Crim. App. 1986). In Ervin, the

defendant was convicted of aggravated sexual battery and aggravated rape after twice

confessing that he fondled and digitally penetrated the victim. A pelvic examination of
the victim revealed injuries consistent with digital penetration. This court held that “the

pelvic examination of the victim was sufficient circumstantial evidence to establish the

corpus delicti and corroborate both confessions by the appellant.” Id. Similarly, we

hold that in the present case, the photographs of the victims’ injuries sufficiently
corroborated the defendant’s confession such that criminal agency was established.



                 II. ADMISSIBILITY OF DEFENDANT’S STATEMENT

                                             5
              The defendant contends that the trial court erred by allowing his statement

into evidence. He contends that the evidence shows that he was under the influence of

drugs when he made the statement, thus the statement is involuntary. The state
contends that the statement was made knowingly and voluntarily, and the trial court

properly admitted it.



              A defendant may waive his constitutional right to silence as long as the

waiver is made “voluntarily, knowingly, and intelligently.” State v. Middlebrooks, 840

S.W.2d 317, 326 (Tenn. 1992). In determining whether a defendant has waived his
Miranda rights, courts must look at the totality of the circumstances. State v. Bush, 942

S.W.2d 489, 500 (Tenn. 1997). A trial court’s findings on a motion to suppress are

conclusive on appeal unless the evidence preponderates against them. State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996).



              The defendant contends that his statement was involuntary because he

was under the influence of the medication he was taking for Parkinson’s Disease. He

states that the following testimony from Dr. Nelson supports his argument that his

statement was involuntary: “[The medication] can have a truth serum type effect that

something - - that a - - someone might withhold. When they are inhibited once they are

disinhibited they might bring out something that they wouldn’t otherwise.”


              We hold that the evidence does not preponderate against the trial court’s

determination that the defendant’s statement was voluntary. The audiotape of the
statement shows that Officer Owenby read the defendant his Miranda rights, and the

defendant stated that he understood them and signed the waiver form. Although he

told the officer that he was taking medication for Parkinson’s Disease, he never told the
officer that it affected his ability to understand what was going on. Both Officer Owenby

and Ms. Switter testified that the defendant did not seem confused or under the

influence of any intoxicant. Furthermore, although Dr. Nelson testified that the

defendant’s medication could have a truth serum-type effect and that one might reveal

information they normally would withhold, no evidence indicates that such occurred in

this case. The trial court properly admitted the defendant’s statement.



                                            6
                      III. ADMISSIBILITY OF OPINION TESTIMONY

               The defendant contends that the trial court erred by allowing both doctors

to testify that, in their medical opinion, the victims suffered from child abuse. He argues
that this testimony is inadmissible because it relates to the ultimate issue to be decided

by the jury and is confusing to the jury. The state contends that the evidence was

properly admitted. It argues that an expert’s opinion need not be excluded merely
because it embraces an ultimate issue to be decided by the trier of fact as long as the

opinion is helpful. It further argues that the trial court in the present case properly

instructed the jury on the weight to be given to the testimony.


               The testimony with which the defendant takes issue occurred when the

prosecutor asked both doctors whether it would be child abuse for an adult male to hold
a young child’s arm against a kerosene heater, causing second degree burns. Both

doctors stated that this would be child abuse. After Dr. Casady’s opinion, the trial court

instructed the jury as follows:

               I allowed the doctor to answer the question and give her
               opinion, but she’s giving medical opinions. You’ll be given a
               legal definition of aggravated child abuse and/or child abuse
               and the decision will be yours, the jury, to determine from all of
               the facts whether the facts in this case fit the legal definition.
               I’m allowing the doctor to give a medical opinion and I think
               maybe I need to clarify that for the record.

Following Dr. Nelson’s opinion, the trial court provided the following cautionary
instruction to the jury:

               Again, ladies and gentlemen, I want to caution you folks and
               make sure that we draw a distinction. What constitutes child
               abuse in medical terminology may not constitute child abuse
               when you hear the definitions that I’m going to give you in the
               charge, and I’m going to give you the law applicable to this
               case. You are the triers of facts. You’re not bound by what an
               expert witness says and you must take all of the facts and
               make a decision in this case as to whether it fits the legal
               definition that you’re going to be given.
The defendant contends that the opinion testimony was inadmissible because it was

not helpful to the trier of fact and, when combined with the trial court’s cautionary

instruction, confused the jury.



               Rule 704, Tenn. R. Evid., provides that “[t]estimony in the form of an

opinion or inference otherwise admissible is not objectionable because it embraces an

ultimate issue to be decided by the trier of fact.” However, opinion testimony is not

                                               7
admissible on an ultimate issue if the jury could readily draw its own conclusions on the

matter without the aid of the witness’ opinion. See Neil P. Cohen et al., Tennessee Law

of Evidence, § 704.2 (3d ed. 1995); Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn.
1987). In addition, expert opinion testimony must “substantially assist the trier of fact to

understand the evidence or determine a fact in issue . . . .” Tenn. R. Evid. 702.



              In the present case, we believe that the trial court erred by allowing the

testimony. The jury did not need the doctors’ opinions in this regard to determine

whether the defendant committed the crimes with which he was charged, nor did the
testimony substantially assist the jury in any way. We also note that to the extent that

the doctors’ opinions ostensibly related to a “medical” as opposed to a “legal” definition

of child abuse, the opinions were irrelevant to the case and potentially confusing to the
jury. Nevertheless, we view the error to be harmless. See T.R.A.P. 36(b). The trial

court provided cautionary statements to the jury immediately after each doctor gave the

opinion, and the state presented a strong case against the defendant. Under these

circumstances, we cannot say that the error more probably than not affected the

judgment.




                                    IV. SENTENCING

              The defendant contends that the trial court erred in sentencing him by (1)

not granting him especially mitigated offender status and (2) sentencing him to twenty
years in confinement. Essentially, the defendant argues that the trial court improperly

balanced mitigating and enhancement factors. The state contends that the trial court

properly sentenced the defendant.


              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is
now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

                                             8
the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).


              However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,
              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf, and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              The sentence to be imposed by the trial court for a Class A felony is

presumptively the midpoint in the range when there are no enhancement or mitigating
factors present. For a Class D felony, the sentence is presumptively the minimum in

the range when there are no enhancement or mitigating factors. Tenn. Code Ann. §

40-35-210(c). Procedurally, the trial court is to increase the sentence within the range

based upon the existence of enhancement factors and then reduce the sentence as
appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). The

weight to be afforded an existing factor is left to the trial court's discretion so long as it

complies with the purposes and principles of the 1989 Sentencing Act and its findings




                                               9
are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing

Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.



                At the sentencing hearing, a presentence report was admitted into

evidence. The report reflects that the then forty-year-old defendant has a 1997

conviction for disorderly conduct. It also reflects that the defendant is taking
prescription medicine for arthritis, depression, and Parkinson’s Disease.



                The trial court denied the defendant’s request to be sentenced as an
especially mitigated offender and sentenced the defendant twenty years in jail for the

aggravated child abuse conviction, the presumptive midpoint, and to two years for the

child abuse conviction, the presumptive minimum. The trial court found, as an
enhancement factor, that the defendant abused a position of public or private trust.

See Tenn. Code Ann. § 40-35-114(15). The trial court found the following mitigating

factors applicable, as listed in Tenn. Code Ann. § 40-35-113:

                (1) The defendant’s conduct neither caused nor threatened
                serious bodily injury;

                (3) Substantial grounds exist tending to excuse or justify the
                defendant’s criminal conduct, though failing to establish a
                defense;
                (5) Before detection, the defendant compensated or made a
                good faith attempt to compensate the victim of criminal
                conduct for the damage or injury the victim sustained;

                (8) The defendant was suffering from a mental or physical
                condition that significantly reduced the defendant’s culpability
                for the offense . . . .; [and]

                (11) The defendant, although guilty of the crime, committed the
                offense under such unusual circumstances that it is unlikely
                that a sustained intent to violate the law motivated the criminal
                conduct[.]

The trial court gave significant weight to the enhancement factor, stating that “[t]here’s
probably no more sacred trust that exist[s] than the bond and the trust between a father

and a child . . . .”



                         A. ESPECIALLY MITIGATED OFFENDER
                First, the defendant contends that the trial court erred by not sentencing

him as an especially mitigated offender. Pursuant to Tenn. Code Ann. § 40-35-109, the

trial court may find a defendant to be an especially mitigated offender if (1) the

                                              10
defendant has no prior felony convictions and (2) the court finds mitigating, but no

enhancement, factors. The question of whether a defendant should be sentenced as

an especially mitigated offender rests within the sound discretion of the trial court. See

State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App. 1993). In the present case,

the trial court found an appropriate enhancement factor. Thus, the defendant was not

eligible for sentencing as an especially mitigated offender.


                              B. LENGTH OF SENTENCE

              The defendant contends that the trial court imposed an excessive
sentence, arguing that twenty years of confinement is excessive in relation to the acts

he committed. The defendant argues that the trial court improperly balanced the

mitigating factors with the enhancement factor. Initially, we note that the trial court
liberally applied the defendant’s mitigating factors. We believe the trial court erred by

applying factor (1), that the defendant’s conduct neither caused nor threatened serious

bodily injury. In any event, the trial court sentenced the defendant to the presumptive

sentences for both the aggravated child abuse and child abuse convictions. The record

supports the sentences imposed.



              In consideration of the foregoing and the record as a whole, we affirm the

judgments of conviction.




                                                  ________________________________
                                                  Joseph M. Tipton, Judge

CONCUR:

________________________________
David H. Welles, Judge


________________________________
Jerry L. Smith, Judge




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