Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 26, 2017 at Knoxville
from the Criminal Court for White County No. CR5205 David A.
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
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Jeffrey A. Vires, Crossville, Tennessee, for the appellant,
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.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE.
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.
Motion to Suppress Hearing
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 warnings. A
hearing was held on the motion.
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,  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.
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
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."
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.
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.
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[.]"
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.
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.
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.
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.
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."
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.
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.
Defendant indicated his understanding to Detective Isom's
another point in the conversation, an unidentified female can
be heard talking in the background discussing when a business
or company opens and closes.
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."
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
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
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
conclusion of the interview, the Defendant was asked if he
had any questions for the officers, to which he replied in
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.
Defendant also filed a pretrial "Motion to Conduct a
Daubert/McDanielHearing." 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.
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.
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.
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.
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[.]"
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
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.
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
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
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
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
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.
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.
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.
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
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.
Defendant narrowed his argument at the conclusion of the
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].
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."
Circumstances Surrounding the Victim's Death.
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[.]"
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
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
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
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.
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.
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.
Kipp testified that she stayed with the victim at Erlanger
until the victim died at 9:46 p.m. on September 5, 2011.
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."
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
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
to Ms. Kipp, the victim appeared to be "fine, " so
they did not seek medical attention for this fall.
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.
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.
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.
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