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State v. Hendrix

Court of Criminal Appeals of Tennessee, Nashville

May 14, 2019


          Session May 15, 2018

          Appeal from the Circuit Court for Williamson County No. II-CR047916 James G. Martin, III, Judge

         A Williamson County Circuit Court Jury convicted the Appellant, Thomas Bethel Hendrix, of two counts of aggravated child abuse and one count of child abuse, and the trial court imposed a total effective sentence of twenty-five years in confinement. On appeal, the Appellant contends that the trial court erred by admitting certain statements he made to law enforcement and that the trial court erred by failing to merge his convictions into a single conviction of aggravated child abuse. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court but conclude that the Appellant's convictions must be merged. Accordingly, the case is remanded to the trial court for merger of the convictions into a single conviction of aggravated child abuse. We note that merger of the convictions does not affect the Appellant's twenty-five-year sentence because the trial court ordered that he serve the sentences concurrently.

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

          J. Gregory Burlison, Franklin, Tennessee, for the Appellant, Thomas Bethel Hendrix.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White and Tammy Rettig, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.



         I. Factual Background

         In April 2014, the Williamson County Grand Jury returned an indictment charging the Appellant in counts one and two with aggravated child abuse resulting in serious bodily injury and in count three with child abuse. Each count alleged that the offense occurred between January 4 and January 8, 2014.

         The victim of the alleged crimes was the two-month-old son of the Appellant's then-girlfriend, Jennifer Barnes. Before trial, the Appellant filed a motion for a bill of particulars, and the State ultimately responded that count one referred to "injury to the victim's ribs/rib," count two referred to "injury to the victim's brain," and count three referred to "bruising of the victim's skin."

         At trial, Barnes testified that she was originally from Detroit, Michigan, and that she had lived in Dickson, Tennessee, for approximately three years. She had two sons, WBB, [1] who was ten years old at the time of trial, and the victim, who was two years old at the time of trial. Barnes' relationship with the victim's father ended two weeks after she learned she was pregnant with the victim.

         The victim was born on October 15, 2013, at twenty-nine weeks gestation. As a result of his premature birth, he had pulmonary lung disease, was placed in the Neonatal Intensive Care Unit (NICU), and was put on a ventilator and a respirator. Three days after the victim's birth, Barnes' long-time friend, Andrea Hendrix, [2] visited Barnes in the hospital. Andrea, who was married to the Appellant's brother, Ben Hendrix, brought the Appellant to the hospital with her, and the Appellant and Barnes met for the first time.

         Shortly thereafter, Barnes was released from the hospital, but the victim remained in the NICU. At that time, Barnes was living with her friend, Tonya Pezzi, in Pezzi's apartment in Dickson. Barnes visited the victim in the hospital almost daily, and the Appellant usually accompanied her. Barnes and the Appellant quickly developed a romantic relationship, and they talked about getting married and renting an apartment together. Barnes spent some nights with the Appellant, who lived in a house with Ben and Andrea in Fairview.

         Approximately two days before Thanksgiving, the victim was released from the hospital after forty-five days in the NICU. The victim continued to suffer from pulmonary issues, which required that he have weekly checkups with his doctor. He also had to be taken to the hospital on several occasions due to breathing issues. Notably, on December 24, 2013, Barnes took him to the hospital because he was sick and had labored breathing. A chest x-ray was taken that day. Barnes thought another x-ray was taken on January 3, 2014, during a follow-up appointment.

         Barnes began working for Dunkin' Donuts in November or December 2013, and she had to leave for work about 4:15 a.m. While she was at work, WBB stayed with Barnes' father, who had late-stage cancer. Barnes usually left the victim with Jennifer Dructor, a babysitter who lived in the same apartment complex as Pezzi. Dructor's boyfriend, Eric Newberry, sometimes helped Dructor care for the victim. On other occasions, Angela or the Appellant watched the victim.

         On Monday, January 6, 2014, Barnes worked until 4:00 p.m. The next day, January 7, the victim was ill, and Barnes stayed out of work to care for him. WBB stayed with Barnes' father, and Barnes and the victim stayed at Pezzi's apartment until approximately 6:00 p.m. Before leaving the apartment, Barnes changed the victim's diaper, dressed him in a "onesie," and put him in a "sleep sack." Barnes explained, "You put the baby into the sleep sack and you zip it up and it has two flaps that kind of wrap over the sides and kind of swaddle them." Barnes then retrieved WBB from her father's house and took her sons to the Appellant's house. The victim was asleep when they arrived, but he woke a couple of times while Barnes and the Appellant sat on the couch and watched television. Either the Appellant or Barnes held the victim when he woke; when he fell asleep, they put him in his car seat on the floor in front of the couch. The victim often slept in his car seat because sleeping at an angle helped his breathing.

         Around 11:00 p.m., Barnes went into the bedroom of Angela's son, Dominic, to sleep, and she put the victim in his car seat beside the bed. The Appellant stayed in the living room to sleep on the couch. Barnes changed the victim's diaper right before she went to sleep and did not see any marks or signs of injury on the victim. The victim's behavior that day had been "perfectly fine," despite his illness.

         Barnes woke around 1:00 or 2:00 a.m. because the victim was crying. She discovered he was not in his car seat beside the bed but was in the living room with the Appellant. Barnes called out and asked the Appellant if everything was okay. The Appellant sighed and responded, "[Y]eah, he's just having a really bad night tonight." After a few minutes, the victim's crying increased, and Barnes asked the Appellant to bring the victim to her. The Appellant did "a lot of huffing and puffing and sighing," and Barnes heard sounds that made her think the Appellant was changing the victim's diaper.

         Barnes mentioned to the Appellant that no lights were on in the house, which was unusual. The Appellant explained that Ben and Angela were trying to save money on the electric bill; however, Barnes had never heard that they wanted to save money on electricity. Barnes asked the Appellant to turn on a light and make a fresh bottle for the victim. After complying, the Appellant brought the victim to Barnes, "kind of shoved" the victim at her, and said, "'[H]ere.'" Barnes thought the Appellant was acting "frustrated and angry." Barnes fed the victim and rocked him, and he fell asleep while eating. Barnes put him back in his car seat beside the bed, and she went back to sleep.

         Barnes woke about 4:00 or 4:30 a.m. on January 8 to get ready for work. About 5:30 a.m., she placed the victim in his car seat beside the couch where the Appellant was sleeping and shook the Appellant to tell him she was leaving. She took WBB to her father's house and headed to work.

         Barnes initially went to the Dunkin' Donuts store in Fairview but was sent to the store in Dickson. She got off work about 12:00 or 12:30 p.m. and spent "several minutes" in the parking lot talking with a coworker about wanting to get a loan so she and the Appellant could rent an apartment. After the conversation, Barnes went into a nearby loan office to start the loan process. Upon leaving the loan office, Barnes went to her father's house, retrieved WBB, and returned to the Appellant's house.

         When Barnes arrived around 1:00 p.m., the victim was still wearing his sleep sack. He was asleep in his car seat beside the couch; Barnes noted that the victim typically slept a lot during the day. Ben was home, asleep in his bedroom. Someone from the loan office called and asked Barnes to return to sign additional paperwork. Before leaving, Barnes asked if the Appellant wanted to go with her. He responded that he had things he needed to do on the computer, so he would stay home and watch Barnes' sons until she returned to get them for the victim's pediatrician appointment, which was scheduled for 4:00 p.m.

         Barnes' return to the loan office took longer than she expected. Upon leaving the office, she called the pediatrician to advise she would be a little late for the appointment. She then called the Appellant and asked him to have the boys ready to go. The Appellant met her outside with the boys when she arrived. The Appellant told her that the victim had been "very agitated" and that he had spent much of the day trying to keep the victim quiet so the victim would not wake Ben. After both boys were in Barnes' car, the Appellant kissed Barnes and told her that he loved her. Barnes thought the Appellant seemed "rushed," "anxious," and "antsy."

         Upon arriving a few minutes late for the 4:00 p.m. appointment at Old Harding Pediatrics, a nurse led Barnes and her sons into an exam room and told Barnes to undress the victim. As Barnes took the victim out of his sleep sack, she noticed that his hands were balled into fists and that one of his hands had what appeared to be marks of dirt or ink across the knuckles. Barnes licked her thumb and wiped at the marks, but they did not come off. Barnes picked up the victim, and his fists opened. On the palm of the marked hand, the victim had "a perfect circle of the same type of markings [she] had found on his knuckles." Barnes took the victim into the hall and summoned a nurse, who then summoned the pediatrician, Dr. Jennifer Ragsdale. The marks were determined to be bruises. Barnes had not seen the bruises before and did not know how they got there. The pediatrician told Barnes to take the victim to Vanderbilt Children's Hospital (Vanderbilt).

         While in the parking lot of the pediatrician's office, Barnes sent text messages to the Appellant about the bruises.[3] In the texts, Barnes asked why the victim was bruised and noted that the Appellant was the last person with the victim. The Appellant responded that he did not know how the victim was bruised, that he did not see bruises on the victim, and that Barnes forgot to put formula in the victim's bag. When Barnes specifically asked how the victim's fingers and palm were bruised, the Appellant replied that he had seen the bruises but had not drawn Barnes' attention to them. Barnes asserted that she did not injure the victim and that the victim was not bruised when she went to bed or when she fed the victim in the middle of the night. The Appellant responded, "Baby, [the bruises were] there when you took him to me in the morning. Maybe I swaddled him too hard and I won't do it again." Barnes again asserted that the bruises were not there when she went to bed and maintained that the victim had been swaddled the entire time he was at the Appellant's house. The Appellant insisted that he was 100% positive the victim had bruises the night before. Barnes responded that she had changed the victim's diaper before coming to the Appellant's house and that the victim had no bruises at that time. She had noticed the bruises immediately when she removed the swaddling at the pediatrician's office. The Appellant said, "I know. I didn't see [the bruises] until this morning." Barnes repeated that the victim was not bruised the night before and that the victim had been with only the Appellant. The Appellant responded, "I understand this. I never accused you." Barnes cautioned the Appellant that if the victim's bruises had been caused by child abuse, their relationship was over. At that point, Barnes stopped sending the Appellant text messages and drove to the hospital.

         Upon arriving at the hospital, the victim was rushed to the Intensive Care Unit (ICU) where he was completely undressed and full body x-rays, a CT scan, and an MRI were performed. In the midst of the testing, Barnes learned the victim had bruises and bleeding on the brain. Barnes then sent the Appellant additional text messages. She told the Appellant that their relationship was over, that she could not risk her children for the Appellant, that the victim had bleeding on his brain, that the victim was just a baby, and that bleeding on the brain did not just happen. The Appellant replied that he never did anything. Barnes stated, "[Y]ou were the only one that's been around him since Monday besides myself and he has blood on his brain now. And there's these marks that were not here yesterday. And I know I didn't do anything." Barnes then stopped exchanging text messages with the Appellant.

         Barnes called the Appellant's cellular telephone after 10:00 p.m. on January 8 and discovered that his telephone number had been changed. She said, "I immediately went to social media because we were friends on Facebook and . . . I was deleted, I was blocked, I couldn't even find him."

         At some point on the night of January 8, Detective David Bohler came to the victim's hospital room. Barnes spoke with him and showed him the text messages she and the Appellant had exchanged.

         Detective Bohler returned to the hospital the next day, January 9, and asked if Barnes would make a recorded controlled telephone call to the Appellant. She agreed, and Detective Bohler "prompted" her to say certain things to the Appellant. Because she knew of no other way to contact the Appellant, Barnes called his workplace, a Sonic restaurant in Fairview. During the call, the Appellant accused Barnes of being vindictive, being crazy, and wanting to press charges against him. Barnes denied his accusations and explained she only wanted to find out what happened to the victim. The Appellant said he and Dructor were afraid of Barnes. At trial, Barnes acknowledged that she was "a northern girl" who "grew up in Detroit" and that her tone of voice could come across as "forceful," "overbearing," and "loud." However, she denied ever doing anything to make the Appellant or Dructor afraid of her.

         Also on January 9, Dr. Lowen informed Barnes that the victim had multiple rib fractures, which shocked Barnes. Barnes told Dr. Lowen she felt guilty for failing to protect the victim. Barnes denied injuring the victim, saying that she loved her children and would never hurt them.

         Barnes testified that the Appellant never showed her the bruises on the victim. Additionally, the Appellant did not show any remorse or concern for the victim during the call. The Appellant never came to visit the victim during the three or four days he was in the hospital, and the Appellant did not ask about the victim's welfare. Contrastingly, Dructor was upset and concerned about the victim's injuries, did not cease contact with the victim and Barnes, and continued to watch the victim for months after his release from the hospital.

         Barnes testified that she was "heartbroken" by the Appellant's lack of care or interest, especially because the Appellant had shown interest in being the victim's "father figure." Barnes continued to take the victim to all of his doctor's appointments, as she had since his birth. At the time of trial, Barnes and her sons were living in an apartment in Dickson.

         On cross-examination, Barnes acknowledged that her sons did not have the same father and that she had full custody of both boys. Barnes had been diagnosed with uterine cancer when she was twenty-seven years old. She was told she would not be able to have more children and was surprised when she became pregnant with the victim.

         Barnes testified that after meeting the Appellant, their relationship developed quickly. The Appellant was very fond of the victim. He also liked WBB, but it "seemed like there was a bit of jealousy between [them] over [Barnes'] time." The victim required more attention than most babies because he had medical issues due to his premature birth. Barnes never saw the Appellant harm the victim and noted that he volunteered to get up with the victim in the night so she could sleep.

         Barnes recalled that sometime between 1:00 and 3:00 a.m. on January 8, she woke because the victim was crying. She thought she heard the Appellant change the victim's diaper because she "hear[d] the sounds that a disposable diaper [makes] when you take off the tabs." After the Appellant brought the victim to her, she spent twenty or thirty minutes feeding and rocking the victim before he fell asleep.

         Barnes stated that she may have gotten off work about 11:00 a.m. and estimated that she talked with a coworker for twenty or thirty minutes before going to a nearby loan office. About 1:30 p.m., she was called back to the loan office from the Appellant's house. Afterward, she picked up her sons and arrived at the pediatrician's office at 4:05 p.m.

         Barnes recalled that while at Vanderbilt, she spoke with Detective Bohler and with an employee of the Department of Children's Services (DCS) for thirty to sixty minutes. She thought Detective Bohler arrived at the hospital around 7:00 p.m. At Detective Bohler's request, Barnes agreed to make a controlled call to the Appellant to find out what happened to the victim. Barnes acknowledged that Ben was home that day but stated that he was asleep in his room and hard to wake.

         Barnes thought the issue was important enough to warrant calling the Appellant while he was working. During the call, the Appellant said he did not know what happened to the victim but wished he knew. When Barnes asked the Appellant if the injuries were the result of an accident, the Appellant denied "actively" harming the victim. Although the Appellant had said he loved her and wanted to marry her, he told her their relationship was over because of her accusations in the text messages. He did not try to convince her to work things out.

         Barnes stated that after she left for work on the morning of January 8, the Appellant was the only person who interacted with the victim, noting that Andrea was at work, Ben was asleep in his bedroom, and Dominic was at school.

         Dr. Jennifer Ragsdale testified that she had been the victim's doctor since he was discharged from the hospital after his premature birth. She noted that the victim was born at twenty-eight weeks gestation and that babies born that prematurely had problems with lung development. Shortly after the victim's discharge from the NICU in November, the victim caught a cold, and he was seen at the Vanderbilt emergency room two or three times for breathing problems. Specifically, the victim was seen at Vanderbilt on December 24, 2013. On January 2, 2014, Dr. Ragsdale's partner in the pediatric practice saw the victim at a follow-up appointment and ordered x-rays, which were performed the next day, January 3.

         On January 8, 2014, Barnes brought the victim to the office because of "fussiness." She and the victim were led into the exam room, and she was asked to undress him. Afterward, she took him across the hall to be weighed and have his temperature taken. Dr. Ragsdale thought that as the victim was being weighed, his hand opened, and Barnes and the nurse "noticed a large purple spot on this hand." Thereafter, the nurse asked Dr. Ragsdale to look at the victim's hand. Dr. Ragsdale saw a large purple bruise in the middle of the victim's palm and a line of bruising across his knuckles. Because the victim was a "tiny baby" who was fussy and had multiple bruises, Dr. Ragsdale was concerned that the victim ...

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