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State v. Hodges

Court of Criminal Appeals of Tennessee, Nashville

April 19, 2017

STATE OF TENNESSEE
v.
MICHAEL DEAN HODGES

          Assigned on Briefs July 15, 2015

          Appeal from the Criminal Court for Davidson County No. 2012-C-2511 Cheryl Blackburn, Judge

         The Davidson County Grand Jury indicted the Appellant, Michael Dean Hodges, of aggravated child abuse in counts one through three and aggravated child neglect in count four. After a jury trial, the Appellant was acquitted in count one but convicted as charged in counts two and three and convicted of knowing aggravated assault as a lesser-included offense of aggravated child neglect in count four. The trial court merged the aggravated assault conviction into the aggravated child abuse convictions and sentenced the Appellant to an effective twenty-five-years in confinement to be served at 100%. On appeal, the Appellant claimed that the trial court erred by failing to sever the charge of aggravated child abuse in count one from the remaining two counts of aggravated child abuse; that the trial court erred by allowing the jury to hear a portion of his statement in which he admitted to prior bad acts; that the trial court erred by giving the jury a supplemental instruction on "knowingly" that failed to include language about non-accidental conduct; and that cumulative error warranted a new trial. This court concluded that the trial court erred by allowing the jury to hear that the Appellant had been "in trouble" previously but that the error was harmless; however, we concluded that the Appellant's conviction of aggravated assault had to be reversed because knowing aggravated assault was not a lesser-included offense of aggravated child neglect. The Tennessee Supreme Court granted the Appellant's application for permission to appeal and remanded the case to this court for reconsideration in light of the court's recent opinion in State v. Howard, 504 S.W.3d 260 (Tenn. 2016), regarding lesser-included offenses. Upon reconsideration, we again conclude that knowing aggravated assault is not a lesser-included offense of aggravated child neglect as charged in this case and modify the conviction to reckless endangerment.

         Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part, Modified in Part

          Brent Horst, Nashville, Tennessee, for the appellant, Michael Dean Hodges.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Alan E. Glenn, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In September 2012, the grand jury indicted the Appellant for aggravated child abuse resulting in serious bodily injury in counts one, two, and three and aggravated child neglect resulting in serious bodily injury in count four. Victoria Stuart, the Appellant's girlfriend and the victim's mother, was named as a codefendant in count four and was charged with being an accessory after the fact in count five of the indictment. Stuart filed a motion to sever her case from that of the Appellant, and the trial court granted the motion.

         Although the Appellant does not challenge the sufficiency of the evidence, we will summarize the proof presented at trial. Tina Simmons, a pediatric nurse practitioner at the Hendersonville Children's Clinic, testified that on June 29, 2011, the Appellant and Stuart brought the victim, who was born on November 22, 2010, to the clinic for her six-month "well child visit." Simmons performed a thorough physical examination, which included checking the victim's ribs and conducting a neurological exam, and did not find any signs of physical abuse.

         Summer Green, Stuart's sister and the victim's aunt, testified that on June 30, 2011, she babysat the victim and that the victim "was a little whiny but nothing unusual." On July 3 or 4, 2011, Green learned the victim had been injured and went to Vanderbilt Children's Hospital. Green asked the Appellant about the victim's injuries, and the Appellant told her that he threw the victim into the air, that he "hesitated, " and that the victim fell. However, the Appellant's story later changed, and he told Green that he dropped the victim because his hands were "slippery" from washing dishes or cooking. When the victim was discharged from the hospital, Green took her home. The victim had a cast on her right leg for six to eight weeks and a feeding tube for at least six months. She also could not control her eyes and took medication for seizures and pain. At the time of trial, the victim did not speak well, had to gesture for what she wanted, and did not walk straight.

          Dr. Bradley Hoover testified that about 11:25 a.m. on July 3, 2011, the victim's parents brought her to the emergency room at Summit Medical Center. Dr. Hoover examined the victim and noticed a bump on her head. The Appellant and Stuart reported that the victim began having decreased activity and increased sleeping on June 30. However, they did not report a fall or trauma, which was very concerning. A CAT scan showed that the victim had two skull fractures, one along her right parietal area and one in the back of her skull, and a subdural hematoma beneath one of the fractures. Based on the CAT scan results, Dr. Hoover had her transported to Vanderbilt Children's Hospital.

         Officer Charles Eaton of the Metropolitan Nashville Police Department (MNPD) testified that on July 3, 2011, he responded to a call from Vanderbilt Children's Hospital and learned that the victim had a skull fracture, three rib fractures, and a femur fracture. He spoke with the victim's parents, and the Appellant stated that he thought the injuries resulted from the victim's falling in her crib sometime between 9:00 p.m. on July 1 and 7:00 a.m. on July 2. The Appellant claimed that when he took the victim out of her crib at 7:00 a.m. on July 2, he noticed that her head was "bouncing up and down" and saw a soft spot on her skull. The Appellant said he and Stuart took the victim to Summit Medical Center that day. However, Officer Eaton later learned that they did not take the victim to Summit until July 3.

         Victoria Stuart testified that on July 1, 2011, the victim was "just fine." The Appellant got out of bed during the night to tend to the victim and reported to Stuart that the victim was screaming and would not eat. The next morning, Stuart and the Appellant could not wake the victim. The victim had a fever, her head was "bobbing, " and her eyes would not focus. She also vomited. Stuart said that the victim had received immunizations at her six-month check-up on June 29 and that she thought the victim's symptoms were a delayed reaction to the shots. On July 3, the victim's fever had decreased but her other symptoms remained, so Stuart and the Appellant took the victim to the emergency room. The Appellant did not tell Stuart that he had thrown the victim into the air or that she had hit the floor or her crib.

         Stuart testified that the victim was transferred to Vanderbilt Children's Hospital, where Stuart learned that the victim had a hairline fracture, a broken femur, and cracked ribs. She said that she did not cause the victim's injuries and that she did not see the Appellant cause the injuries. However, the Appellant would become angry with the victim's crying and was alone with the victim many times. The police interviewed the Appellant twice at Vanderbilt. After the Appellant's first interview, he "wouldn't look [Stuart] in the face" and was "very dodgy." After his second interview, he told Stuart that he had dropped the victim on Friday, July 1. The Appellant said that he threw the victim into the air, that he did not catch her, that she hit her head on an exercise machine, and that he grabbed her leg. The Appellant also told Stuart that "there was an instance before that where his hands were wet, and he dropped [the victim] on the bars of her crib." On July 7, Detective Kenneth Stephens interviewed the Appellant at the police department. After the interview, the Appellant told Stuart that he had been coerced into saying that he intentionally harmed the victim. The Appellant maintained that he accidentally hurt the victim. However, Stuart "kept getting different stories" from him. She said the State had not promised her anything in exchange for her testimony.

         On cross-examination, Stuart testified that on July 2, the Appellant suggested several times that they take the victim to the hospital, but Stuart declined because she thought the victim was reacting to the immunizations. Stuart and the Appellant had other children, and Stuart never saw the Appellant act violently or excessively rough toward them. She said that the Appellant would "[hand] the kids off" when he got frustrated, that he helped her with parenting, and that she had no reason to think he intentionally hurt the victim.

         Kenneth Stephens testified that in July 2011, he was a detective with the MNPD. On July 3, Stephens responded to a call about a child with injuries at Vanderbilt Children's Hospital. He learned that the victim's rib fractures were healing and, therefore, had been received at an earlier date but that the victim's skull and femur fractures were recent. Stephens interviewed the Appellant for more than two hours in the hospital waiting room. The Appellant claimed that about 11:30 p.m. on Friday, July 1, the victim woke up screaming. The Appellant tried to feed her, but she would not eat and went back to sleep. About 3:00 a.m., the victim again woke up screaming, the Appellant tried to feed her, and she would not eat. The Appellant noticed that the victim had vomited. About 8:00 a.m., the victim felt warm, and the Appellant could not wake her. She drank from a baby bottle but vomited. Later that day, the victim was "awake and whiny, " but her head would "bounce" and her eyes were "twitching." About 10:00 p.m., the Appellant found a soft spot on the right side of the victim's head. The Appellant claimed that he and Stuart took the victim to the hospital about 9:30 on Sunday morning. However, Stephens later learned that they had not arrived until 11:30 a.m., despite living a short distance away. The Appellant did not offer any explanation for the victim's injuries and "was sure that [Stuart] would not have done anything to cause injury to the baby." Stephens said that after he spoke with the Appellant, he spoke with Stuart. Stuart was not truthful or "forthcoming" in parts of her interview.

         Stephens testified that he then interviewed the Appellant for a second time at the hospital. Stephens said that he had been "gentle" with the Appellant during the first interview but that he was "a little bit more forward" with the Appellant during the second interview. During the second interview, which was audio-recorded and played for the jury, the Appellant eventually admitted that he dropped the victim. He said that she hit her head "smack dab" on the edge of a dresser and that she hit her leg "by the crib." The Appellant said that the victim's rib injuries may have occurred a couple of months earlier. He explained that he had been cooking, that his hands were greasy, and that the victim slipped out of them. The victim's chest hit the rail of her crib, and she fell onto the carpet.

         Stephens testified that on July 7, 2011, he interviewed the Appellant for a third time. The interview occurred at the police department and was video-recorded. During the interview, which the State played for the jury, Stephens accused the Appellant of lying. However, the Appellant maintained that he accidentally dropped the victim. Stephens continued to confront the Appellant about how he broke the victim's femur, and the Appellant stated that he threw the victim into the air, failed to catch her, and "pulled" her leg. The Appellant said that he had been frustrated with the victim due to her crying but that he did not intentionally hurt her.

         Deborah Lowen, a pediatrician at Vanderbilt Children's Hospital and the director of the "child abuse team, " testified that she evaluated the victim and spoke with the victim's parents on July 3, 2011. The victim's skull fractures crossed across a suture line, indicating that "a higher degree of force" caused the fractures. Dr. Lowen said the skull fractures and resulting hematoma were inconsistent with a simple fall or the Appellant's claim that he dropped the victim. The victim's femur had sustained a "buckle" fracture near the right thighbone. Dr. Lowen explained that the fracture was an "impaction injury from the bone being kind of pushed from the end" and that the injury could have occurred if the victim had been dropped and landed on her knee. Dr. Lowen doubted that the injury could have been caused by grabbing or pulling the victim's leg and did not think "the exact same mechanism" could have caused the victim's femur and skull fractures. She stated that three of the victim's right ribs were broken "in about a straight line" and that such an injury usually occurred "[w]hen the chest [was] squeezed" by an adult's hands around a baby's chest. She said that she did not know the amount of force needed to break a baby's ribs in that manner but that the force "would have been outside of normal care giving in a healthy baby" and was not the result of an accident. Dr. Lowen said that a baby's ribs healed very quickly. She estimated that the victim's rib fractures occurred one month to six weeks prior to the skull and femur fractures and stated that the victim would have been fussy due to pain for three or four days after sustaining the fractures.

         Dr. Lowen testified that in addition to the victim's various fractures, she "remained with an altered level of consciousness and with altered neurologic status for many, many days, for most of the course of the hospitalization and only very gradually improved." The victim was irritable, difficult to console, and had a high-pitched cry. Dr. Lowen opined that the victim's injuries were the result of non-accidental trauma or child abuse. On cross-examination, Dr. Lowen testified that she could not say the victim's injuries were greater due to the failure to seek immediate medical attention.

         Susan Pruitt, a licensed senior psychological examiner, testified that she evaluated the Appellant in September 2011 and administered various tests. She said that the Appellant was of average intellect and communication skills and that he "'reluctantly shared details from two incidents in which he takes responsibility for injuries to [the victim].'" The Appellant claimed that the victim was crying, that he threw her into the air three times in order to distract her from crying, that he failed to catch her the third time, and that she hit a piece of exercise equipment. The Appellant also claimed that three days before he failed to catch the victim, he dropped her onto her crib. Pruitt said the Appellant "'seemed very remorseful'" and was "'teary eyed.'"

         At the conclusion of Pruitt's testimony, the State rested its case and made the following election of offenses: count one, aggravated child abuse, was based on the Appellant's causing multiple rib fractures to the victim sometime in June 2011; count two, aggravated child abuse, was based on the Appellant's causing skull fractures, a "brain bleed, " and a brain injury to the victim on or about July 1, 2011; count three, aggravated child abuse, was based on the Appellant's causing a buckle fracture of the victim's femur on or about July 1, 2011; and count four, aggravated child neglect, was based on the Appellant's causing multiple fractures, a brain bleed, and a brain injury to the victim on diverse dates between June and July 3, 2011, and failing to seek prompt medical attention for her injuries.

         Matthew Norman, a licensed psychiatrist, testified that he examined the Appellant at defense counsel's request. Based on the Appellant's test results, Dr. Norman concluded that the Appellant was "more compliant than ninety-five percent of individuals in the general population." The Appellant was in the seventy-fifth percentile for suggestibility and "ninety-five percent more likely than someone in the general population to shift his answers." Dr. Norman acknowledged that the Appellant was "more likely to bend to the will" of authority than the average person and that he was more likely to change his answer to one suggested or desired by the questioner. Dr. Norman described the Appellant as "someone to avoid conflict and wants to conform." He could not say that the Appellant was truthful with Detective Stephens, but he acknowledged that the Appellant may have been truthful with the officer. He also acknowledged that he had watched or listened to some of the Appellant's interviews with Detective Stephens, including the video-recorded interview on July 7, and that some of the officer's questions were suggestive or leading. On cross-examination, Dr. Norman acknowledged that during the Appellant's interviews with the detective, the Appellant often interrupted him and tried to deflect his questions to a different topic.

          At the conclusion of Dr. Norman's testimony, the jury acquitted the Appellant of count one, aggravated child abuse based on the victim's rib fractures. However, the jury found him guilty as charged of count two, aggravated child abuse based on the victim's skull and brain injuries, and count three, aggravated child abuse based on the victim's femur fracture, Class A felonies. In count four, the jury found the Appellant guilty of knowing aggravated assault, a Class C felony, as a lesser-included offense of aggravated child neglect resulting in serious bodily injury. After a sentencing hearing, the trial court merged the aggravated assault conviction into the aggravated child abuse convictions and sentenced the Appellant to concurrent sentences of twenty-five years to be served at 100%.

         II. ...


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