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State v. Benesch

Court of Criminal Appeals of Tennessee, Nashville

August 25, 2017


          Session December 13, 2016

         Appeal from the Circuit Court for Dickson County No. 22CC-2013-CR-234 Larry J. Wallace, Judge

         The Defendant, Edward Joseph Benesch II, stands convicted by a Dickson County jury of aggravated child neglect and voluntary manslaughter, for which the trial court sentenced him to an effective term of eighteen years' incarceration. In this appeal as of right, the Defendant raises the following allegations of error: (1) that the trial court erred by denying the Defendant's motion to suppress his statement to police after he first requested an attorney and that request did not need clarification in the Defendant's opinion; (2) that the evidence was insufficient to support the Defendant's convictions because he did not intentionally neglect the victim and because the element of adequate provocation was absent; (3) that the trial court abused its discretion when it admitted photographs of the victim taken at the crime scene and during the victim's autopsy given their gruesome nature; (4) that trial court erred by allowing a paramedic to testify as an expert about the "significance of the force" that caused the victim's injuries; (5) that it was improper for the trial court to allow two witnesses, Shannon Edmonson and Shara Tisdale, to testify about the Defendant's alleged drug usage and drugs being found in his home; (6) that the trial court should not have allowed testimony from the Defendant's next-door neighbor that bore "no indicia of reliability and was completely unverifiable"; (7) that the trial court's refusal to allow the Defendant's "mitigation expert" to testify regarding how the Defendant told her he fell on the victim violated the Defendant's constitutional right to present a defense; and (8) that the trial court erred when it allowed the State to play, as a prior inconsistent statement, the video recording of Judith Lane's interview with law enforcement.[1] Following our review of the record and the applicable authorities, we must conclude that the evidence was insufficient to support the Defendant's conviction for voluntary manslaughter because the Defendant was not adequately provoked by the eighteen-month-old victim, and therefore, that conviction is reversed and vacated. However, because the proof is sufficient to support the lesser-included offense of reckless homicide, we remand this matter to the trial court for entry of an amended judgment reflecting a reckless homicide conviction and imposition of a consecutive, four-year sentence for that conviction. The Defendant's remaining issues do not entitle him to relief, and his conviction for aggravated child neglect is affirmed. Accordingly, the trial court's judgments are affirmed in part and reversed in part.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part; Reversed in Part; Case Remanded

          Olin J. Baker and William Walker Wade, Charlotte, Tennessee, for the appellant, Edward Joseph Benesch II.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Wendell Ray Crouch, Jr., District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         This case arose following the death of the eighteen-month-old victim while she was in the exclusive care, custody, and control of the Defendant. The Defendant was charged with first degree felony murder in the perpetration of aggravated child abuse, first degree felony murder in the perpetration of aggravated child neglect, aggravated child abuse, and aggravated child neglect. See Tenn. Code Ann. §§ 39-13-202, -15-402. The Defendant proceeded to a trial by jury where the following evidence was adduced.

         A. The Victim's Death and the Defendant's arrest.

         Ms. Kimberly Perez was the victim's aunt. Ms. Perez testified that the victim's mother was in jail in March 2013 and that, during this time, the Defendant was caring for the victim and the victim's three-year-old sister. Moreover, when the victim's mother was arrested, she was pregnant with her seventh child, and the Defendant was the father of this baby.

         On Thursday morning, March 7, 2013, Ms. Perez was asleep on her couch when she was awakened by the Defendant, who was telling her that the victim was "sick" and "need[ed] to go to the hospital." Ms. Perez instructed the Defendant to bring the victim inside, and Ms. Perez went to use the restroom. When Ms. Perez returned to the living room, the Defendant "was at the door" with the victim "on his shoulder." Ms. Perez took the victim from the Defendant and laid her on the floor. At that time, the victim "was just limp and unresponsive, " according to Ms. Perez. Ms. Perez tried to arouse the victim by talking to her and touching her, but Ms. Perez realized that the victim was not breathing. Ms. Perez explained the victim's state: "She wasn't moving. Her eyes had rolled back when I put her down and [were] kind of half open." When Ms. Perez "knew something was wrong" with the victim, she phoned 9-1-1 and began performing CPR on the victim while receiving instructions from the 9-1-1 operator.

         According to Ms. Perez, the Defendant immediately left her home after handing the victim to her. The Defendant had also brought the victim's three-year-old sister with him, leaving her with Ms. Perez as well. Ms. Perez opined that the Defendant "left in a hurry" because she could "hear gravel spinning everywhere" in her driveway.

         Ms. Perez testified that she had cared for the victim the weekend prior to these events. Ms. Perez stated that she did not notice any bruising on the victim's body during those several days, noticing only that the victim had a "bite mark on her" face that was supposedly "from another child" and "some discolorations on her face." Ms. Perez also read aloud from a statement she gave[2]:

Perez reiterated [the Defendant's] account that he tripped and fell on top of [the victim] the night before, then he noticed she was wheezing late last night. Perez stated all she knew when [the Defendant] brought her in was the baby was limp. Perez repeated when she had asked him why he had not called 9-1-1. [The Defendant] replied, because he was scared.

         Emergency personnel and law enforcement responded to the call from Ms. Perez's residence of "a child who was not breathing." Officer Scott Anthony Hull, with the City of Dickson Police Department, arrived on the scene at approximately 7:43 a.m. and saw the victim lying on a blanket in the living room. Officer Hull checked for a pulse and signs of breathing but found none. He further described the victim's condition:

When I walked in, she was facing-her head was towards the TV, feet [were] towards the crib. . . . Behind one of her ears was a large knot, bruising. She had bruises all over her abdominal cavity, her sides, her back, deep purple bruises, and she was just-she was lifeless.

         Thereafter, Officer Hull took over CPR from Ms. Perez.

         When Officer Hull saw "red lights pull up to the house, " he thought it was an ambulance, so he carried the victim outside. Officer Hull said that he "knelt down" and "continued CPR on the [victim]" but that, after observing "the first responders from the fire department . . . getting their stuff together, " he "ran back into the house with [the victim] to keep her warm[.]" According to Officer Hull, he renewed CPR efforts once back inside until "some lady" replaced him.

         Officer Hull also testified that, when he took the victim outside, she was "already rigid" and that she "wasn't limp like a normal child would be." Moreover, once outside, Officer Hull saw that the victim's bruises "were more extreme than what [he] thought they were" initially. On cross-examination, Officer Hull agreed that "over the course of time as a body sits and cools, it begins to get a purplish color[.]"

         Heather Bradley testified that she was a paramedic with the Dickson County Ambulance Service and that she responded to the call at Ms. Perez's residence that morning. Ms. Bradley stated that, when she arrived, the victim "was unresponsive, cold to the touch, apnea, [and] pulseless." Ms. Bradley also noticed "multiple bruises" on the victim's head, face, chest, back, legs, and arms. Furthermore, Ms. Bradley observed Officer Hull and "two first responders" with the fire department attempting "some treatment or resuscitation efforts" on the victim. Ms. Bradley then helped place an automated external defibrillator device ("AED") on the victim. However, the AED did not detect a heartbeat, according to Ms. Bradley, so "[n]o shock was advised" and no further resuscitation attempts were performed.

         Ms. Bradley explained that, during this time, her "partner had been on the phone with the doctor who gives us permission to stop if [her partner] has painted the picture for [the doctor] that there [are] no signs consistent with life." Based upon her partner's representations to this doctor, the doctor pronounced the victim dead on the scene. Ms. Bradley informed that, had she been the one on the phone with the doctor instead of her partner, she would have reported that the victim "was not breathing" and "there was no pulse" and would have described "the bruising and discoloration that appeared to be on [the victim's] body." Ms. Bradley characterized this bruising as "significant."

         That same morning, Officer Jerry Booker, with the Dickson County Sheriff's Office, went looking for the Defendant at the Defendant's home on Rocky Road. Officer Booker arrived at 11:33 a.m. and knocked on the door, but no one answered. According to Officer Booker, while he was standing at the Defendant's front door, he could smell "a typical household cleaner smell" that "was a little stronger . . . than you would expect[.]"

         Ultimately, the Defendant was found at the home of Judith Lane on Dowdy Road, and he was arrested without incident by Dickson County Sherriff's Officer Michael Richard Eggiman at 11:36 a.m. that morning. The Defendant's vehicle, however, was found "quite a ways" away from the Dowdy Road residence unattended in a K-Mart store parking lot. According to Officer Eggiman, the Defendant, upon his arrest, asked "is the girl okay?" and said, "I was just about to call you."

         B. Rocky Road Residence.

         Shara Tisdale, the Defendant's sister, testified that the Defendant, the victim, and the victim's three-year-old sister were living with her in a mobile home on Rocky Road in March 2013. Ms. Tisdale's boyfriend, Shannon Edmonson, also stayed with her "off and on." According to Ms. Tisdale, the mobile home was "a pretty good ways out of town, " and it took at least ten to fifteen minutes to get from her residence "back to Dickson."

         On the evening of March 6, 2013, Ms. Tisdale had some girlfriends over to spend the night; Mr. Edmonson, the Defendant, the two children were also there. Ms. Tisdale testified that she got the children ready for bed that evening, which usually included giving them a bath and putting their pajamas on them. Ms. Tisdale stated that she did not observe any bruising or other injuries to the victim at that time, although the victim did have a "bite above her ear" from "the week prior."

         When one of Ms. Tisdale's friends "got a phone call from her niece saying she needed her to baby sit, " the group decided not to have a "sleepover" at Ms. Tisdale's but to return to Dickson and "stay over at the niece's house." Ms. Tisdale, along with her two friends and Mr. Edmonson, got in Ms. Tisdale's car and left the residence "close to dark." Ms. Tisdale dropped Mr. Edmonson off at his mother's house, and the women proceeded to "the niece's house, " which left the Defendant alone with the victim and the victim's sister at the Rocky Road residence. According to Ms. Tisdale, when she left, the Defendant was awake and playing with the two girls. Ms. Tisdale affirmed that she had not seen the Defendant drinking or using drugs that evening.

         During the morning hours on the following day, March 7, 2013, Ms. Tisdale received several text messages from the Defendant-(1) "Call me now."; (2) "The baby is hurt."; and (3) "[P]ick up the phone, the baby is hurt bad." According to Ms. Tisdale, the Defendant's last message was sent at 8:14 a.m. while she was at work and said, "If anybody asks, I've not had the kids in two days, I've been with you." In addition, Ms. Tisdale spoke with the Defendant that morning, and she said "[h]e was scared" and crying. He did not sound intoxicated, in Ms. Tisdale's opinion.

         Ms. Tisdale also averred that the Defendant had not done drugs in her presence "in a month" before this incident. Ms. Tisdale had no knowledge of "any illegal drugs or drug paraphernalia" in her home and asserted that she did not have any there. Furthermore, according to Ms. Tisdale, the Defendant "loved [the two girls] very much[, ]" and she had never noticed abusive behavior by the Defendant. Ms. Tisdale testified that the Defendant had kept her daughter, Judith Lane's children, and "several of [their] other friends' kids" without any problems. Ms. Tisdale stated that, if the Defendant was "around children, he wouldn't drink to excess."

         In addition, Ms. Tisdale was asked about her neighbor John Rayburn. Ms. Tisdale stated that she "honestly recall[ed] seeing him maybe twice the whole entire time" she lived in the mobile home and that she was unsure if he lived next-door. When asked if Mr. Rayburn ever came over to their house, Ms. Tisdale replied, "He stood in the yard one time."

         Mr. Edmonson also testified, providing similar testimony to Ms. Tisdale's. Mr. Edmonson said that he did not see the Defendant use cocaine on the evening of March 6, 2013, and that he was unaware of cocaine in the trailer that evening. Mr. Edmonson also averred that he would be surprised to learn that a straw with cocaine residue on it was found inside the house. Mr. Edmonson acknowledged that he gave a statement to law enforcement that the Defendant appeared to have been drinking or was "messed up" earlier in the day.

         Shatika Chantel Gilbert, one of Ms. Tisdale's girlfriends present on the evening of March 6, 2013, relayed her version of the events, which was again similar to Ms. Tisdale's. Ms. Gilbert likewise did not see any visible bruises or marks on the victim when they gave her a bath that evening nor did she observe the Defendant do cocaine that evening. Ms. Gilbert estimated that they left the Rocky Road residence around 9:45 or 10:00 p.m., and she stated that the Defendant "was fine when [they] left him." Furthermore, according to Ms. Gilbert, Ms. Tisdale kept two air mattresses in the trailer, and Ms. Gilbert saw those mattresses inside the mobile home that evening because they were going to have a sleepover.

         John Rayburn testified that he lived next door to the Defendant. Mr. Rayburn said that he visited the Defendant on the evening of March 6, 2013, and that the victim and the victim's sister were there along with "a white man and a black man[.]" According to Mr. Rayburn, while he was inside the Defendant's home, he observed the Defendant drinking beer and snorting cocaine.

         Furthermore, Mr. Rayburn stated that "[t]he oldest girl took [the victim's] sock off and the little girl lost the sock." The Defendant was angered by the victim's losing her sock, so the Defendant "hit [the victim] like a man, " striking her three times in the ribs and punching her in the head. Mr. Rayburn said that the victim cried after the Defendant hit her, and when asked how long she cried, Mr. Rayburn replied that the victim "cried all the time [he] was there." The Defendant threw the victim into a closet after striking her, according to Mr. Rayburn. Additionally, the Defendant said to Mr. Rayburn that he was tired of caring for the two girls while their mother was incarcerated and could not wait until she was released. Mr. Rayburn left the residence after witnessing the violence. Mr. Rayburn estimated that he was only inside the Defendant's home for about five to ten minutes that evening.

         Mr. Rayburn agreed that he did not immediately report what he saw to law enforcement, only doing so the following morning after speaking with both his mother and his wife. Additionally, Mr. Rayburn was shown two photographs and identified Shannon Edmonson and Jonathan Lane as the two people he saw inside the Defendant's home on the evening of March 6, 2013. Mr. Rayburn claimed that he had seen these two men "[m]ultiple times."

         C. Additional Witnesses' Testimony.

         Judith Lane testified that the Defendant was a life-long friend of her brother's and that she and the Defendant spoke on a regular basis. Ms. Lane testified that, on the morning of March 7, 2013, "[b]etween 7:00 and 7:30, like 7:20 something maybe, " the Defendant called her while she was dropping her kids off at school. The Defendant asked her for a ride because his car had broken down. Ms. Lane told him that he had to first get permission from her mother, Tammy Conner, because Ms. Lane was driving her mother's car. After Ms. Conner gave her permission, the Defendant called Ms. Lane back to tell Ms. Lane to pick him up at a local Kroger.

         Ms. Lane testified that, after she picked the Defendant up at the Kroger, he said to her that there "was something wrong with" the victim. Specifically, the details of that conversation were as follows:

He told me that he had fell [sic] down the steps and fell on [the victim] and that-the night before and that he thought that she was okay because she cried for a little bit but then she was fine, and he said she went to bed and that everything was okay. And then the next morning, he felt like something was wrong with [the victim]. . . . He took [the victim] and [the victim's sister] to [Ms. Perez's house].

         Ms. Lane described the Defendant's demeanor as he conveyed these details to her: "He looked scared and really quiet. I mean, he was really quiet anyway. He was direct and to the point. He didn't say a whole lot of extra stuff." She said that they did not talk about whether the Defendant should have sought medical care for the victim before she picked him up. Ultimately, Ms. Lane dropped the Defendant off at her house on Dowdy Road, and she left.

         On cross-examination, Ms. Lane stated that she "[w]ould not have any problem leaving [her] children with [the Defendant]" and that the Defendant had in fact cared for her children before. She later clarified,

Oh, I'm sorry. This says that I concluded that [the Defendant] had never had the kids, not for five seconds. And it also says that not because I didn't think he could take care of them, but-and not that I didn't think he was incapable of showing compassion and love for them, but just because it was a bad situation and you don't take care of kids that are not yours.

         Ms. Lane confirmed that she gave a statement to Tennessee Bureau of Investigation ("TBI") Agent Mike Breedlove and Dickson County Sheriff's Detective Stacey Patterson following the victim's death. The statement was played for the jury. After watching the recording of her interview, Ms. Lane recalled having spoken with the Defendant about taking the victim to the emergency room prior to picking him up at the Kroger.[3] Ms. Lane also summarized the Defendant's version that he relayed to her: "[The Defendant] was coming down the steps to go to the store. He had [the victim] on his arms, the cat r[a]n underneath his foot, tripped, fell down the steps onto [the victim], and he thought that she was okay." Additionally, Ms. Lane stated that she was still scared at the time of trial that she was "going to be charged" with something due to her giving the Defendant a ride.

         Cherish Nicole Sylvis testified that the Defendant visited her home during the day on March 6, 2013, to see her boyfriend. Ms. Sylvis stated that she returned home from work at approximately 12:30 p.m., and when she saw the Defendant, she thought "he might have been messed up on drugs[, ]" possibly cocaine.

         Reba Iselin rented the Rocky Road mobile home to Ms. Tisdale. On one occasion, Ms. Iselin went inside the residence and saw two air mattresses on the floor.

         D. Investigation by Law Enforcement.

         Surveillance footage covering the evening hours of March 6, 2013, was obtained from the Love's Travel Center off of I-40 at exit 163. On the recording, the Defendant could be seen inside the travel center purchasing a six-pack of beer and a pack of cigarettes at 10:48 p.m.

         Mike Breedlove testified that he was in his fifth month as Sheriff of Cheatham County and that, prior to that, he was a special agent criminal investigator with the TBI for thirty years.[4] Agent Breedlove was tasked with investigating the victim's death.

         Agent Breedlove went to Ms. Perez's residence on March 7, 2013, where he saw "two dug out areas of" Ms. Perez's gravel driveway. Once inside the residence, Agent Breedlove saw the victim lying on the floor covered by a blanket. He removed the blanket and saw a reddish brown stain or substance inside the victim's ear and a number of bruises and marks all over the victim's body. Agent Breedlove explained that the victim had "quite a few injuries" "all over her body." According to Agent Breedlove, this was "one of the wors[t] blunt force injury deaths that [he had] worked in [his] career, " and he "was very sure that given the injuries to the child that it wasn't accidental." He also opined that the victim's injuries were not consistent "with [someone] just falling on a child." Furthermore, Agent Breedlove testified that he was familiar with lividity and livor mortis, which involves the settling of blood post-mortem, and while some of that was present here, the settling of blood did not account for the victim's multiple bruises, in Agent Breedlove's opinion.

         Later that evening, Agent Breedlove went to the Defendant's residence on Rocky Road to conduct a search. Agent Breedlove observed a reddish-brown stain or substance on the front steps, "a scuff mark or something" on one of the steps, and fibers of hair on the "floor mat on the porch." A plastic drinking straw with powdery residue was discovered in the Defendant's bedroom. Subsequent testing by the TBI revealed the presence of cocaine and human DNA on the straw that matched the Defendant's DNA profile. Also, Agent Breedlove observed a pair of matching children's socks inside the home-one sock was seen in the laundry area and the other behind a white rocker in the living room.

         According to Agent Breedlove, the mobile home was in general disarray but "also there was evidence that there was some cleaning done." Agent Breedlove smelled "some kind of cleaning agents, " and he saw a bucket with a mop and a cleaning agent inside. While Agent Breedlove did not see any trash inside the trash can, he did observe a reddish brown stain or substance therein. Moreover, there were no beer bottles or cigarettes found anywhere inside the residence despite evidence that the Defendant had purchased such items the night before. Agent Breedlove had also learned that the victim may have, on occasion, slept on an air mattress; this fact being corroborated by testimony from Ms. Gilbert and Ms. Iselin that they saw two air mattresses inside the home. However, Agent Breedlove did not find any air mattresses in the trailer.

         Agent Breedlove confirmed that the Defendant's home was in the southern part of Dickson County and that Ms. Perez's was at least fifteen to twenty minutes away. He further verified that TriStar Horizon Hospital was located only 1.66 miles from Ms. Perez's residence.

         In addition, Agent Breedlove, along with Detective Kelly Owen of the Dickson Police Department, interviewed the Defendant about the circumstances surrounding the victim's death. A video recording of that interview was played for the jury. During the interview, the Defendant revealed that he knew the victim "was messed up bad" when she was injured; that he believed she needed to go to the hospital at that time, although he did not take her that evening due to his level of intoxication; and that, after the fall, he still went to the gas station to get cigarettes despite his claim that he "was too drunk to drive." The Defendant also said, "[A] little girl is dead, man, it's my fault . . . all my fault man . . . motherf--king fault . . . I wish I had been good, man, I was trying to keep them safe." Agent Breedlove agreed that the Defendant "was under quite a bit of distress" during the interview.

         Agent Breedlove also photographed the Defendant following the Defendant's interview, taking pictures of the Defendant's forehead, right elbow, and right knee. Although Agent Breedlove saw some redness on the Defendant's knee and elbow, he did not observe any lacerations or cuts. Agent Breedlove asked the Defendant several times during the interview if he needed medical attention, and the Defendant always responded in the negative.

         Finally, Agent Breedlove testified that the Defendant's truck was discovered abandoned in a K-Mart parking lot. Agent Breedlove did not see if the truck would start before having it towed. However, he did not recall the keys being in the truck, and "most importantly, " he did not want anyone inside the truck until it was "processed."

         D. Medical Testimony.

         Doctor Thomas Deering testified as an expert in forensic pathology. Dr. Deering performed the victim's autopsy on March 8, 2013, and prepared a report, which included a diagram of the victim's injuries. Dr. Deering determined that the victim's cause of death was homicide due to multiple blunt force injuries to the torso. He also found that multiple blunt force injuries to the victim's head were a contributing cause of death, noting that there "were way too many" to be the "result of a kid running around just doing normal things like falling."

         Regarding the injuries to the victim's head, Dr. Deering stated that the victim had sustained multiple contusions or bruises to the left side of her forehead and face, and a small abrasion to her left nostril. She also had multiple large contusions on the back of her head. Dr. Deering described the bruises on the back of the victim's head as "confluent, " which meant that they "kind of grew together." Additionally, the victim had bruises "over each ear, " multiple contusions to the right side of her face and head, multiple "superficial subgaleal hemorrhages, " and some swelling on her brain.

         Turning to the injuries to the victim's torso area, Dr. Deering explained that she had multiple bruises to her chest and back. There was a large bruise beginning on the left side of the victim's chest and going onto her back, and this "large area of bruising" was not a typical bruise, according to Dr. Deering. The victim's left posterior tenth rib was fractured, which was unusual for a child this age because children's ribs are "more elastic" than adults. The location of this rib fracture indicated inflicted trauma. The victim sustained "multiple deep lacerations" to her liver, and there was "a big collection of blood sitting on top of it." The victim had tears to her spleen and kidney. Dr. Deering found that two milliliters of blood had pooled in the victim's belly, which was "a lot" for a child the victim's age.

         Dr. Deering testified about the "blunt traumas to [the victim's] extremities." He noted that she had bruises on the left knee, the right upper arm, and the left forearm. However, he did not "really make much out of those."

         Dr. Deering explained that lividity was "the settling of blood after death." He stated that the deep purple caused by lividity was different than a bruise.

         When asked if "[t]hese type of injuries in an infant at this age" would be painful, Dr. Deering responded, "Yes. I mean, they would be painful. The lacerations, the bleeding into the belly, certainly the rib fracture would be painful." Dr. Deering was also asked for his medical opinion about whether the victim could have survived had she received prompt medical treatment after being injured, and he agreed that it would have been the victim's "only opportunity to survive."

         Dr. Deering explained that injuries of the kind sustained by the victim were most often accounted for by inflicted trauma, such as car wrecks or falls from one- or two-story buildings, because it took "a significant amount of force" to cause the victim's injuries. In Dr. Deering's opinion, the Defendant's version of events-that the Defendant was holding the victim in his arms when he tripped over a cat and fell down some stairs, falling on top of the victim-was "very unlikely." Furthermore, Dr. Deering stated, "This is non-accidental trauma or child abuse, particularly when you bring in the head trauma that can't be accounted for at all by a single fall."

         E. Defense Proof.

         Mr. Edmonson was recalled and testified that he was not present with Mr. Rayburn at the Defendant's residence on the evening of March 6, 2013. According to Mr. Edmonson, the only time he was with Mr. Rayburn at the Defendant's residence that year was in January or February to watch the college football national championship game. He did not see the Defendant hit the victim at any time while they watched the football game.

         Jonathan Lane was called to the stand and denied ever being present at the Defendant's residence on the evening of March 6, 2013. Mr. Lane likewise testified that, earlier that year, he watched the college football national championship with Mr. Rayburn at the Defendant's residence and that he did not observe the Defendant strike the victim on that occasion.

         F. Verdict and Sentencing.

         Following the conclusion of proof, the jury acquitted the Defendant of felony murder in the perpetration of aggravated child abuse and of aggravated child abuse. He was found guilty of voluntary manslaughter as a lesser-included offense of felony murder during the perpetration of aggravated child neglect and guilty as charged of aggravated child neglect. The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of twelve years for the aggravated child neglect conviction and six years for the voluntary manslaughter, resulting in an effective eighteen-year sentence. The Defendant appealed, and the case is now properly before this court.


         On appeal, the Defendant presents the following issues for our review: (1) whether the trial court erred by refusing to grant the Defendant's motion to suppress; (2) whether the evidence was sufficient to support the Defendant's convictions; (3) whether the trial court abused its discretion when it admitted photographs taken at the crime scene and during the victim's autopsy; (4) whether the trial court erred by allowing a paramedic to testify as an expert about the "significance of the force" that caused the victim's injuries; (5) whether the trial court erred by allowing two witnesses to testify about the Defendant's alleged drug usage and drugs being found in his home; (6) whether John Rayburn's testimony should have been excluded because it bore "no indicia of reliability and was completely unverifiable"; (7) whether the trial court should have allowed the Defendant's "mitigation expert" to testify; and (8) whether the trial court erred when it allowed the State to play, as a prior inconsistent statement, the video recording of Judith Lane's police interview. We will address each in turn.

         I. Motion to Suppress

         The Defendant filed a motion to suppress on July 2, 2013, arguing that any statements made by him after he asserted his right to counsel were taken in violation of his constitutional rights and, therefore, inadmissible. The trial court agreed and entered an order to that effect. However, the Defendant later sought clarification regarding the admissibility of the following exchange that took place at 11:38 a.m. while the Defendant was alone with Detective Owen, Agent Breedlove's having stepped out of the room:

[The Defendant]: "Talk to a lawyer man." ...

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