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State v. Iceman

Court of Criminal Appeals of Tennessee, Nashville

October 24, 2017


          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Criminal Court for White County No. CR5205 David A. Patterson, Judge.

         The Defendant, Joshua Iceman, was convicted by a jury of aggravated child abuse and first degree felony murder, for which he received concurrent terms of eighteen years and life imprisonment, respectively. The Defendant appeals, arguing (1) that his statement at the hospital resulted from custodial interrogation given without proper Miranda warnings and, therefore, that statement should have been suppressed; (2) that the State experts' testimony on "shaken-baby syndrome and/or non-accidental trauma" was not sufficiently reliable to warrant its admission; (3) that the evidence was insufficient to support his convictions because the jury was faced with conflicting expert testimony; and (4) that the trial court erred in enhancing his sentencing term for his aggravated child abuse conviction above the minimum in the Class A felony range. Following our review of the record, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Joshua Iceman.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Philip A. Hatch and Caroline E. Knight, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         This case arose following the death of the eight-week-old victim while she was in the exclusive care, custody, and control of the Defendant. For these actions, the Defendant was charged on September 13, 2011, with aggravated child abuse and first degree felony murder. See Tenn. Code Ann. §§ 39-13-202, -15-402.

         I. Motion to Suppress Hearing

         Prior to trial, the Defendant filed a motion to suppress, arguing that his September 3, 2011 statement at Erlanger Hospital ("Erlanger") was obtained through custodial interrogation devoid of Miranda[1] warnings. A hearing was held on the motion.

         Detective Chris Isom of the White County Sherriff's Office testified that, on September 3, 2011, he received a call from Erlanger that an infant, the victim, was possibly "shaken" and "might not survive." Detective Isom, along with Investigator Terry Hembree of the Thirteenth Judicial District's District Attorney's Office, travelled to Chattanooga to investigate. Upon arriving at the hospital that afternoon, the two men met with the doctors and nurses tending to the victim, who informed them of the victim's various injuries. Later that evening, Detective Isom, Investigator Hembree, and Investigator Carla Yates of the Department of Children's Services, interviewed both the victim's mother, Ms. Crystal Kipp, [2] and the Defendant, individually, in "an empty hospital bedroom." The victim's mother was questioned first, and after she left the hospital room, the Defendant was called into the room and questioned. The Defendant's interview began at approximately 7:37 that evening and, according to Detective Isom, lasted about an hour to an hour and a half. Detective Isom testified that, after the interview was completed, the Defendant left the hospital with family.

         Regarding the circumstances of the interview, Detective Isom explained that, although the door was shut, it was not locked; that the Defendant sat on the couch "right next to the door"; that the Defendant was not handcuffed or shackled during the interview; and that the Defendant entered the room under his own volition. Furthermore, Detective Isom advised the Defendant that the interview was fact-finding in nature, specifically, that they "were just there to find out what had happened to" the victim. According to Detective Isom, he explained to the Defendant that the Defendant "was the one that would decide what questions he wanted to answer or did not want to answer" or, stated another way, that, if the Defendant did not want to answer a particular question, then they would not "go there."

         Additionally, at the conclusion of the interview, the Defendant agreed to speak with Detective Isom again if the need arose. Moreover, Detective Isom described the interview as normal in tone and cordial in nature, although the Defendant did become upset at one point when asked "some questions about specifics about the [victim's] injuries."

         On cross-examination, Detective Isom agreed that, during the conversation, he stated to the Defendant that he "just want[ed]" the Defendant "to feel comfortable" while answering questions. The Defendant responded to Detective Isom's comment by stating, "I'm just . . . a little tore up still from this incident." The Defendant also informed Detective Isom that he had been awake for almost forty-eight hours. However, Detective Isom opined that, "from [the Defendant's] demeanor and from the way [the Defendant] was acting, " the Defendant was "comfortable" during the interview.

         When Detective Isom was asked if the Defendant was considered a "suspect" at the time of the interview, Detective Isom replied, "As I look back now, I would have probably considered everybody that I came in contact with a suspect and/or witness." Detective Isom acknowledged that the Defendant was never given Miranda warnings.

         Detective Isom testified that, towards the end of the conversation, the Defendant was "upset" about the following: "[The Defendant] mentioned that he didn't like law enforcement and . . . specifically that he didn't like Investigator Hembree[, ] and he made some sort of reference to the way his family had been treated." Additionally, Detective Isom confirmed that the Defendant asked during the interview if there was "any chance that [he was] going to get [his] cell phone back[.]"

         On redirect examination, Detective Isom reiterated that, towards the conclusion of the interview, the Defendant got "frustrated . . . when asked about the findings the doctors had described[, ]" but nonetheless, the Defendant indicated that "he would be willing to speak with [Detective Isom]" if additional questions arose. Detective Isom also testified that the Defendant "was the one that was closest" to the unlocked door and that neither he nor Investigator Hembree was wearing a uniform.

         Regarding the Defendant's cell phone, Detective Isom confirmed that the Defendant had signed a "Permission to Search Form." This form was signed by the Defendant at 8:58 p.m., which was close to the end of the interview. Detective Isom also assented on recross examination that, while the Defendant's interview was not videotaped, there was an audio recording of the interview.[3]

         The Defendant also testified at the motion to suppress hearing. The Defendant stated that the officers approached him that day at the hospital and asked to speak with him, and they identified themselves as law enforcement. According to the Defendant, he felt like he "had to go talk with them" and did not "feel like [he] could just get up and leave at any time" while being questioned.

         On cross-examination, the Defendant confirmed that he was driven to Chattanooga by the victim's mother's family members. The Defendant affirmed that he walked into and out of the hospital room voluntarily; however, according to the Defendant, he did not "sit right next to the door[.]" Moreover, the Defendant stated that he was unaware if the door was locked or unlocked during the interview, but he assented that he never asked to leave the hospital room at any time.

         The Defendant agreed that, near the end of the interview, he gave permission to search his cell phone and that he conveyed his willingness to meet for a second interview. The Defendant confirmed that Detective Isom explained to him "that he was there to talk about what happened" to the victim, but the Defendant did not recall Detective Isom saying to him that it was his decision "what [he] answered and what [he] didn't want to answer[.]" According to the Defendant, Detective Isom was not yelling at him during the interview and was "[j]ust asking . . . questions[.]" The Defendant did not remember becoming "aggravated" during the interview "when confronted with the medical evidence."

         The transcript of the interview reflects that, upon entering the room, the Defendant was asked, "[H]ow are you doing?" and he responded, "Pretty good." Detective requested of the Defendant, "If you'll just take a seat." Investigator instructed, "Right there." The Defendant initially maintained that the victim's injuries likely occurred after a fall from the couch. The Defendant asserted that he laid the sleeping victim on the couch placing a "blanket around her" so she would not fall off. When he went into the kitchen to get something to eat, he heard a loud "thump." He returned to the victim to find her lying on the floor. However, the victim did not look injured according to the Defendant, so when she again fell asleep, he placed her in a swing. Between thirty minutes to an hour later, the Defendant checked on the victim and observed that she was breathing "weird." He began to rock her. The Defendant said that the victim stopped breathing "not too long . . . after, " so he ran her to the nearby hospital.

         At one point in the interview, the Defendant began to talk about how his grandmother "almost caused" him "to split up" with Ms. Kipp. He then stated, "I'd rather not get into that situation if you guys don't min[d]." Detective Isom responded,

That's fine-that's fine. We're-we're here to talk about what you want to talk about. I want you to understand that. We're-you know-I may ask a question, but if you say I don't want to talk about that-that's fine. Okay. . . . [A]nd if you don't want to [g]o there-I don't want to go there.

         The Defendant indicated his understanding to Detective Isom's comments.

         At another point in the conversation, an unidentified female can be heard talking in the background discussing when a business or company opens and closes.

         After the Defendant provided his version of events to the officers regarding the fall from the couch, he was told that the doctors did not think that the victim's injuries were consistent with his explanation. The Defendant then opined that the victim could have been injured when he was running with her to the hospital because she was "limp" and "flopping around the whole time[.]" The Defendant proclaimed, "I was just focused on getting her to the hospital. I think that it happened there because I've never shaken that baby, nor will I ever shake a baby."

         Later in the interview, Investigator Hembree continued questioning the Defendant about the medical evidence, commenting that it did not support the Defendant's story. The Defendant remarked, "[H]ang on, there's no actual medical evidence saying that someone actually shook this-like-just vigorously shook this child." However, Investigator Hembree said, "Ah yeah there is, " to which the Defendant replied, "[N]o because they don't know. . . . No. They don't know exactly how her-how she was moving whenever . . . I was running. They don't know." When Investigator Hembree continued to assert that the doctors did in fact know how the victim's injuries were received, the Defendant inquired, "[H]ow do they know?" Investigator Hembree responded, "Because you've got bleeding in the brain, " to which the Defendant countered, "Okay. Yeah and that can happen from any acute movement." The Defendant stated that he was becoming "irate" due to Investigator Hembree's accusations.

         While again speaking with Detective Isom, the Defendant asserted,

[T]he doctors told us-told me to my face that any acute movement which is any type of fast movement that is not normally-like doesn't normally occur . . . . So I mean, me running-I mean I didn't have like a great hold on her-I mean I was-it was full force sprinting okay. There's a very good possibility that it could have happened then.

         Detective Isom then asked, "When did they tell you guys something different? You know you said that they said acute movement at first and then someone told you something differently. When did that happen?" The Defendant replied, "Well one of the doctors told us acute movement-and the nurse told us vigorous shaking."

         At the conclusion of the interview, the Defendant was asked if he had any questions for the officers, to which he replied in the negative.

         Following Detective Isom's testimony and the introduction of evidence, the trial court denied the Defendant's motion to suppress. Thus, the State was permitted to use the September 3, 2011 hospital statement in its case-in-chief.

         II. Daubert/McDaniel Hearing

         The Defendant also filed a pretrial "Motion to Conduct a Daubert/McDaniel[4]Hearing." The Defendant argued that expert testimony on "shaken-baby syndrome" or "non-accidental head trauma" or "abusive head trauma" was unreliable, submitting that an analysis of the five non-exclusive factors in McDaniel supported this assertion. A hearing was held.

         First, we note that the Defendant does not now on appeal, nor did he at the hearing, challenge the qualifications of Dr. Annamaria Church as an expert in the field of "pediatrics and pediatric trauma" or Dr. Adele Lewis as an expert in the field of "forensic pathology." Indeed, their respective educations and training in these fields are extensive, as was established during voir dire.

         Dr. Church stated that she was a general pediatrician, served as the Medical Director of the Child Protection Team at Erlanger, and had taught as an Associate Professor in the Department of Pediatrics at the University of Tennessee. Dr. Church asserted that, based upon her education, training, and experience as a general pediatrician, she was able to differentiate between non-accidental and accidental trauma to a child. According to Dr. Church, accidental trauma was accompanied by "a history that describes the accident, " whereas with non-accidental trauma, the history given either did not "match the physical findings or [there was] no history" provided.

         Dr. Church estimated that she saw "thousands" of children each year, which included children under the age of two that presented with subdural hematomas, retinal hemorrhages, broken ribs, metaphyseal fractures, and bruising on the neck. Dr. Church described her process for concluding that this constellation of symptoms amounted to a diagnosis of non-accidental trauma:

So for each thing I try and find other explanations for and generally what I try and do is find that a child has not been abused, so subdural hematomas, I might think about various things that might explain it. And then again, through my history taking, through my physical exam and through data collected through lab or x-ray I'm able to narrow everything down and if I have a story that does not match the findings and I have no other possible explanation for the findings, then I make the diagnosis of non-accidental trauma.

         Dr. Church testified that this process was "recognized and used . . . in the field of general pediatrics, " and she further conveyed that "the topics of abusive head trauma/non-accidental trauma [were] generally accepted within the scientific community" in this country. Dr. Church affirmed her belief that "abusive head trauma and non-accidental trauma" were "a real diagnosis" and that such a diagnosis could be made "within a reasonable degree of medical certainty[.]"

         Moreover, Dr. Church had access to "a listserv, " which listed published and peer reviewed articles compiled by a group of professionals "interested in the field of child abuse and neglect" and provided a forum for discussion. Regarding the methodology of testing a "diagnosis of abusive head trauma and non-accidental trauma" due to shaking, Dr. Church stated that studies were conducted using various animal models "where that particular animal mimics the situation . . . of a small child" because it was not possible to perform tests on actual infants. Dr. Church further remarked that "computer models" had been "developed and generated" "where somebody put[] together hardware to simulate a baby." Based upon these models, doctors inferred "what kind of forces [were] going on in a baby." Furthermore, according to Dr. Church, reports had been gathered where perpetrators confessed to shaking the child and that coincided with the "findings by the physicians of injuries involving abuse[.]"

         Dr. Church conveyed her familiarity with "journal articles and studies that [had] been conducted regarding abusive head trauma, shaken-baby syndrome, . . . and non-accidental trauma[.]" According to Dr. Church, she would read the publication and determine whether she agreed with the publication's conclusion, which included discussing the conclusion with other experts. Additionally, these publications were subjected to peer review.

         Dr. Church relayed her awareness of organizations that recognize a finding of abusive head trauma or non-accidental trauma. Specifically, Dr. Church testified that the American Academy of Pediatrics had guidelines for such a diagnosis and that the Center for Disease Control "put out papers on abusive head trauma" or shaken-baby syndrome. Additionally, Dr. Church confirmed that she made her findings independent of litigation; her primary concern being "making sure the child is safe and getting them back to health."

         Defense counsel then cross-examined Dr. Church. First, Dr. Church confirmed that she had conducted training sessions on shaken-baby syndrome, abusive head trauma, or non-accidental trauma, but that she herself had not published any articles on the subject. Dr. Church was then presented with several articles on the topic refuting the validity of such a diagnosis. She testified that she was aware of the publications but that she did not agree with the publications' conclusions; for instance, she disagreed that an infant with a fatal head injury would not have immediate symptoms.

         Dr. Church affirmed that the medical community was unable to precisely determine the minimum amount of force necessary to cause a subdural hematoma or retinal hemorrhaging in an infant through shaking, explaining that "there are so many variables involved that it's hard to develop an applicable force[, ]" for instance, "how much skin, how much muscle, how exactly was that force applied, etc., etc." She clarified that the medical community could estimate the minimal force necessary to cause a subdural hematoma, explaining, "[s]o for instance . . ., bouncing a child or throwing one up in the air, " is "not enough" nor "the correct height[] of forces to cause the injury." Moreover, according to Dr. Church, the vast majority of subdural hematomas in children are traumatic in nature; however, they can occur during the "birthing process[.]"

         Dr. Adele Lewis testified that she worked as a forensic pathologist and was the Deputy Chief Medical Examiner for Metropolitan Nashville Davidson County. She said that she had performed approximately three thousand autopsies during her tenure with the Medical Examiner's Office, and that "probably over a hundred" of those were on children less than one year of age. Dr. Lewis had also testified as a forensic pathology expert in Kentucky, Georgia, and Mississippi, as well as Tennessee. Moreover, Dr. Lewis had lectured in the area of forensic pathology and child abuse and had taught at two Tennessee medical schools about the findings of abusive head trauma and non-accidental trauma. Dr. Lewis agreed that professionals were "moving toward" a diagnosis of abusive head trauma or non-accidental trauma, rather than terming it shaken-baby syndrome.

         Dr. Lewis described her process for performing autopsies and opined that her process was "consistent across the field of forensic pathology[.]" When asked how she made a conclusion of non-accidental trauma or abusive head trauma, Dr. Lewis stated that she relied upon her observations during the autopsy and the history provided. Furthermore, she utilized her skills, experiences, and training as a forensic pathologist, in addition to reviewing articles or case studies "in determining what types of things a person may look for in making a finding of abusive head trauma or non-accidental trauma[.]" She also was aware of case studies where perpetrators admitted to abusing the child and that admission was compared with the medical evidence. Dr. Lewis confirmed that there were journal articles and case studies that had been published on the topic and were subjected to peer review.

         Dr. Lewis also stated her disagreement with the following proposition: "[B]ecause we do not have the ability to shake or abuse babies or infants, . . . a forensic pathologist or a doctor, an expert witness in those fields[, ] cannot arrive at a finding" of non-accidental trauma or abusive head trauma as the cause or manner of death. In addition, she maintained that "[n]o other medical condition fully mimics all of the features of the shaking-impact syndrome" and that "[s]everal patterns of clinical and radiographic findings allow a definitive diagnosis." Furthermore, a diagnosis of abusive head trauma or non-accidental trauma was a generally accepted diagnosis in the profession of forensic pathology, according to Dr. Lewis. She also listed several organizations that recognized the diagnosis.

         Dr. Lewis stated that finding an infant suffered a subdural hematoma, retinal hemorrhaging, rib fractures, and metaphyseal fractures was "fairly suggestive" of shaking, but without more, she could not conclusively diagnosis the infant with abusive head trauma or non-accidental trauma. However, a child under the age of one with those injuries would "raise [her] suspicion, " so she would attempt to investigate further. Moreover, there had been occasions, according to Dr. Lewis, where an infant had presented with this constellation of symptoms, and she did not believe that the injuries occurred from abuse.

         Dr. Lewis testified that her autopsy findings were made independent of litigation. In addition, Dr. Lewis opined that a finding of non-accidental trauma or abusive head trauma was "a reliable scientific diagnosis" and could be made "within a reasonable degree of medical certainty[.]"

         On cross-examination, Dr. Lewis was presented with an article "on fatal pediatric head injuries caused by short distance falls[.]" Dr. Lewis did not believe that the article was applicable because a majority of those cases involved older children.

         The Defendant narrowed his argument at the conclusion of the hearing,

So finally, you know, what I'm asking the . . . court to do, all I'm asking the court do is to . . . disallow expert testimony that the children were diagnosed with either shaken-baby syndrome or abusive head trauma or a non-accidental trauma. Just to prohibit that diagnosis alone.
Now the State expert may testify that the children suffered a subdural hematoma and that the children suffered a retinal hemorrhage and they testify that in their opinion this combination is consistent with the act of vigorous shaking. But I'm asking that the court not permit them to use the term shaken-baby syndrome, abusive head trauma, non-[accidental] head trauma in order to bootstrap the crime that the State has to prove by masquerading it as this part of the medical [proof].

         At the conclusion of the hearing, the trial court denied the Defendant's motion and permitted the testimony. Additionally, the trial court noted that Dr. Church could have been qualified as "an expert in the area of shaken-baby/non-accidental trauma/abusive head trauma."

         III. Trial

         A. Circumstances Surrounding the Victim's Death.

         Crystal Kipp, the victim's mother, testified that she started dating the Defendant in December 2010 and that she was two months' pregnant with the victim at that time. Ms. Kipp stated that she married the Defendant about four months later, although, according to Ms. Kipp, the ceremony was not legal. She described the Defendant's demeanor as "great" during her pregnancy, noting that he never missed a doctor's appointment. Ms. Kipp relayed that the victim was born on July 6, 2011, and that the Defendant was listed as the victim's father on her birth certificate. According to Ms. Kipp, the Defendant "claimed [the victim] as his own[.]"

         Ms. Kipp confirmed that she was not immediately released from the hospital following the victim's birth because they found E. coli on Ms. Kipp's placenta. According to Ms. Kipp, the victim was given intravenous antibiotics as a preventive measure "just to make sure that [the victim] wasn't going to get it." Ms. Kipp testified that "they had to wait forty-eight hours for two tests to come back to clear [the victim]" and that, when those were negative, they were allowed to leave the hospital. In addition, Ms. Kipp confirmed that she and the Defendant were required to watch a video on shaken-baby syndrome before leaving the hospital. She further described the video, "How to deal with babies and how to kind of prepare new parents for what they're like, that it is hard, but just try to keep your cool."

         Ms. Kipp was asked to describe the "first few weeks" when they returned home after the victim's birth. She replied that those weeks were "[p]erfect. It wasn't, it was a piece of cake. She was perfect, our relationship was great, it couldn't have went better." She was asked to describe the Defendant as a father, to which she responded, "He was, couldn't ask for better. He was a hog, like I mean I wanted to hold her all the time and so did he."

         About four weeks after giving birth, Ms. Kipp returned to work, working at Walmart for a brief stint. Thereafter, Ms. Kipp started working the second shift at S&S Precision on September 1, 2011, starting at 3:00 or 3:30 p.m. and ending at 2:00 a.m. The Defendant watched the victim while she worked.

         Ms. Kipp returned home from work early the next morning on September 2, 2011, and later that day, the couple took the victim to Pizza Hut for lunch. While they were eating, Ms. Kipp took a picture of the victim on the Defendant's lap, and that photograph was entered into evidence. Ms. Kipp stated that nothing was "wrong with [the victim] at that time that [she] noticed[, ]" and she described the victim as "[j]ust happy." According to Ms. Kipp, they left the restaurant and went to the barber shop, intending for the Defendant to get his hair cut. However, the couple became involved in a "heated" argument, so they left without the Defendant's getting a haircut and returned to their apartment. Ms. Kipp explained that the argument continued once back at the apartment and that she took off her wedding rings and placed them on the floor because she "was done with the relationship at that point." They argued until it was time for her to leave for work, according to Ms. Kipp. Ms. Kipp described the victim during this time as "[p]erfect, as usual[, ]" "happy, " and playful.

         While Ms. Kipp was at work that evening, she exchanged text messages with the Defendant "asking how [the victim] was doing and . . . slowly trying to talk about what had happened previously with the argument." Ms. Kipp said that she received a text message from the Defendant 12:26 a.m. to go to White County Hospital because the victim was not breathing. She left work and immediately went to the hospital. Ms. Kipp was able to see the victim after a short time, describing, "[s]he seemed fine, I mean she seemed a little bit scared. She was moving her arms and kicking her legs, and you know, looking around and everything like she was alert." The victim was not intubated at that time, according to Ms. Kipp. Shortly thereafter, the victim was "airlifted" to Erlanger in Chattanooga.

         Ms. Kipp testified that, after her "conversations with the physicians, " she talked with the Defendant. She asked the Defendant if "he had [the victim] around anybody, " to which he replied in the negative. She also inquired about what had happened to the victim to cause her injuries. According to Ms. Kipp, the Defendant said,

[S]he was a little bit fussy, so he gave her Benadryl and then fed her a bottle and she fell asleep, so he put her in the swing that was pictured, pulled the door to, went out to the living room for about an hour, went back in there to check on her, and she was not breathing.

         Ms. Kipp testified that she stayed with the victim at Erlanger until the victim died at 9:46 p.m. on September 5, 2011.

         Ms. Kipp confirmed that, while at Erlanger, she spoke with law enforcement and that the Defendant was also interviewed by the officers. She stated that she was "present when [the Defendant] left the meeting with law enforcement[, ]" and she described his demeanor at that time as "really bubbly, confident, cocky almost."

         On cross-examination, Ms. Kipp confirmed that she "had medical issues during [her] pregnancy" and that "there were issues" with the victim's delivery. Regarding the victim's delivery, Ms. Kipp relayed that, in addition to the E. coli infection, the victim's heart "wouldn't come off [] one ninety and they took her for a C-section." Additionally, Ms. Kipp testified that, "about a week to two weeks" before the victim's death, she was prescribed Benadryl for allergies. She further explained that the victim "was really snotty" and having "upper respiratory" troubles. Ms. Kipp confirmed that they took the victim to the doctor "[m]ore than once" for these issues. Furthermore, Ms. Kipp affirmed that, when the victim was seen by Cookeville Pediatrics around the beginning of August, a full body x-ray was performed, and no broken bones or fractures were discovered.

         Ms. Kipp was asked to describe an incident when both she and the Defendant were home and the victim "fell off the side of an air mattress or rolled off the side of an air mattress." Ms. Kipp explained,

That was shortly after she was born. I was is in the shower and I got out right away cause I heard [the victim's] crying and he said that she, he was sitting on the edge of the air mattress and she was too close to the edge and she rolled off.

         According to Ms. Kipp, the victim appeared to be "fine, " so they did not seek medical attention for this fall.

         Ms. Kipp opined that she and the Defendant were diligent in seeking medical care for the victim. Ms. Kipp confirmed that, prior to victim's admission to the hospital, she never suspected the victim had any fractures or broken bones, the victim never showed "any limited range of movement[, ]" and the victim never cried out after being touched.

         Ms. Kipp stated that the victim "was stuffy and snotty" when she left for work on September 1, but Ms. Kipp did not "consider her as being sick[.]" Furthermore, Ms. Kipp agreed that Defendant was "hysterical" when she arrived at White County Hospital.

         On redirect, Ms. Kipp acknowledged that she did not see what actually happened with respect to the air mattress incident because she was in the shower. Ms. Kipp then detailed an incident that occurred when she was working at Walmart. According to Ms. Kipp, the Defendant called her and "said that he was standing in the living room holding [the victim] on his arm . . . and she kicked off his stomach and she fell on her back side on the floor." Ms. Kipp stated that the Defendant was alone with the victim at that time. The Defendant, believing the victim might have been hurt, brought her directly to Ms. Kipp at work. Ms. Kipp "checked her out" and did not see any problems. Ms. Kipp also mentioned another incident that occurred while she was working at Walmart:

I was at work again at Walmart, he didn't tell me this until I had got home, but he was changing her diaper in the crib and he had her too far down to the side of the crib and she didn't really like to be on her back, so she was kicking and she kicked the side of the crib and he said that her foot, her toes went back to almost her chin. . . . So he was worried about her right foot being hurt.

         Ms. Kipp estimated that this incident occurred twenty-four days before the victim passed away. They also took the victim to the doctor on this occasion, and a full body x-ray was performed, according to Ms. Kipp. Ms. Kipp said that she ...

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