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Watts v. Leibach

United States District Court, M.D. Tennessee, Nashville Division

September 12, 2019

CHRISTOPHER EARL WATTS #369452, Petitioner,
v.
BLAIR LEIBACH, Respondent.

          MEMORANDUM OPINION

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Petitioner Christopher Earl Watts, a state prisoner incarcerated in the Trousdale Turner Correctional Center in Hartsville, Tennessee, has filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254 and has paid the filing fee. The court will grant the petition in part and deny it in part for the reasons explained below.

         I. FACTS AND PROCEDURAL HISTORY

         The Tennessee Court of Criminal Appeals cogently summarized the evidence at trial when it reviewed the petitioner's post-conviction appeal:

[I]n April 2007, the petitioner was in a romantic relationship with Lakeisha Watkins. State v. Christopher Earl Watts, No. M2009-02570-CCA-R3-CD, 2012 WL 1591730, at *5 (Tenn. Crim. App. May 3, 2012). The petitioner lived with Ms. Watkins and the victim, Ms. Watkins' then fifteen-month-old child, in an apartment rented by Ms. Watkins. Id. The petitioner periodically babysat for the victim. Id. at *10.
On April 16, 2007, the petitioner babysat the victim while Ms. Watkins went to the dentist. Id. at *5. According to a statement later given by the petitioner to the police and played for the jury at trial, while babysitting, the petitioner brought the victim with him while he took the trash outside to the dumpsters. Id. The victim let go of the petitioner's finger, began running, and fell down a nearby hill. Id. The victim injured his lip, and a knot eventually appeared on his head. Id. The petitioner denied there were bruises on the victim's face. Id. The fall occurred around 11:00 a.m., but the petitioner and Ms. Watkins waited until 7:00 p.m. to take the victim to the hospital. Id.
Dr. Lawrence Stack, an emergency medicine physician at Vanderbilt Hospital, and a resident examined the victim on April 16, 2007. Id. at *6. The petitioner identified himself to the doctors as the victim's stepfather and said the victim fell “‘flat on his face'” while he and the victim were walking down the hill to take out the trash. Id. The petitioner further reported that after falling, the victim slept for most of the day. Id. Dr. Stack noted the victim was fussy, unresponsive to attempts to open his eyes, and had multiple bruises on his forehead, face, upper arms, and shoulders. Id. Dr. Stack diagnosed the victim with a concussion and admitted him to the hospital so the Care Team, a consultation service responsible for evaluating children suspected of being abused, could evaluate his bruises and home environment. Id. at *6-7.
After being discharged from the hospital, the victim lived with Ms. Watkins' father for approximately three weeks. Id. at *3. The victim subsequently lived with Ms. Watkins' mother for another three weeks. Id. at *4. Eventually, Ms. Watkins asked if the victim could return to her home. Id. at *11. After a site visit from a case worker during which Ms. Watkins lied and said she was no longer in a relationship with the petitioner, the victim began living with Ms. Watkins and the petitioner again. Id.[1]
The petitioner and Ms. Watkins continued to reside together in June 2007. Id. at *5. According to the petitioner's statement, the morning of June 13, 2007, the victim had a seizure while the petitioner changed his diaper. Id. at *5. It was hot in the apartment, so the petitioner thought the victim was having a heat stroke. Id. The petitioner put the victim in front of a fan, and the victim “‘snapped out of it.'” Id.
Nicole Riley, the petitioner's cousin, testified that on the afternoon of June 13, 2007, the petitioner brought the victim to a birthday party at her house. Id. at *7. The victim “‘just stood there'” and did not move, talk, or play. Id. Ms. Watkins later arrived, and the victim began to cry. Id.
According the petitioner's statement and Ms. Watkins' trial testimony, somebody named Michael spent the night in the apartment on June 14, 2007. Id. at *5, *12. The petitioner did not think Michael hurt the victim. Id. at *5. Ms. Watkins testified that Michael never had contact with the victim. Id. at *12.
The petitioner further indicated in his statement that on the morning of June 15, 2007, he woke up to find the victim had gotten out of his playpen, gone downstairs, and was “leaning on the couch.” Id. at *5. At some point, the victim began screaming, and Ms. Watkins gave him Tylenol. Id. Later that day, Ms. Watkins fed the victim and exited the apartment, leaving the petitioner alone with the victim. Id. Shortly thereafter, the petitioner noticed the victim's lips were blue, and he appeared lifeless. Id. The petitioner ran outside and called for help. Id. The petitioner, who did not know how to perform cardio pulmonary resuscitation (“CPR”), blew into the victim's mouth and “‘pressed'” on the victim. Id. A female neighbor then performed CPR on the victim, and he began to breathe. Id.
Ms. Watkins offered a slightly different version of the events occurring June 15, 2007. Id. at *11. According to Ms. Watkins' trial testimony, around 9:00 a.m., she heard the victim screaming and got out of bed to check on him. Id. The petitioner was holding the victim and told Ms. Watkins that he found the child downstairs, “‘asleep standing up.'” Id. About five minutes later, the victim had a seizure that lasted five to ten minutes. Id. The petitioner did not want to call an ambulance, so she gave the victim Tylenol and let him sleep. Id. The victim remained weak and sleepy for the remainder of the day. Id.
Around 9:45 p.m., Ms. Watkins left the apartment to get something to eat while the petitioner watched the victim. Id. When she left, the victim appeared to be breathing normally. Id. When she returned about five minutes later, the victim was not breathing. Id. One neighbor performed CPR, while another called 911. Id.
Dr. Sandra Moutsios, a pediatrician and internist at Vanderbilt Hospital, testified at trial as an expert in pediatric medicine and child abuse. Id. at *7. According to Dr. Moutsios, after coming to the emergency room on June 15, 2007, the victim was treated for continuous seizures, stabilized, and admitted to the hospital. Id. Dr. Moutsios was part of the Care Team to subsequently evaluate the victim. Id.
Dr. Moutsios testified extensively about the injuries sustained by the victim and indicated “‘it was his mental status that was most concerning.'” Id. Dr. Moutsios opined the victim sustained multiple injuries to his brain, one of which was acute and occurred within a couple days of June 15, 2007. Id. at *9. The other brain injuries were older. Id.
Because the brain injuries were different ages, they were not the result of a single fall down the stairs. Id. at *9-10. According to Dr. Moutsios, had Ms. Watkins and the petitioner sought medical treatment for the victim prior to the seizure occurring June 15, 2007, the later seizure may have been prevented. Id. at *9.
In addition to brain injuries, the Care Team discovered that the victim suffered a fracture to his left arm bone near the wrist. Id. at *8. Dr. Moutsios described the fracture as a “‘buckle fracture'” meaning “‘there was some force that caused the outside layer of the bone to actually buckle.'” Id. Significant force would have caused the fracture and could have been the result of a “‘twisting mechanism.'” The fracture had started to heal, and Dr. Moutsios estimated the victim's arm was broken one to two weeks before he was brought to the hospital on June 15, 2007. Id.
At the petitioner's trial, the State made reference to Ms. Watkins living in the “projects” and Mr. Watkins living “on the streets” in its opening statement.[2] Trial counsel did not object. The State then called the following witnesses as part of its case-in-chief: Janell Driver, a paramedic with the Nashville Fire Department; Bryan Jones, a paramedic with the Nashville Fire Department; Falonda Tolston, a case manager for Child Protective Services; Detective Woodrow Ledford of the Metropolitan Nashville Police Department (“MNPD”); John Watkins, Lakeisha Watkins' father; Pamela Watkins, Lakeisha Watkins' mother; Detective Faye Okert of the MNPD; Dr. Lawrence Stack, an ER physician at Vanderbilt Hospital; Jessica Mitchell, Ms. Watkins' next door neighbor; Nicole Riley, the petitioner's cousin; Latoya Starks, a neighbor of Ms. Watkins; Dr. Sandra Moutsios, a pediatrician and internist at Vanderbilt Hospital; and Ms. Watkins. Id. at *1-12. In addition, the State played the petitioner's videotaped statement to police, and a video of the victim seizing. Id. at *5. The State then rested. Id. at *13.

         The State made the following election of offenses at the close of its proof:

Count 1, the [petitioner] committed aggravated child abuse on or about April 16, 2007, by causing severe head injuries to the victim, including a concussion, inability to open eyes, and multiple facial bruises; count 2, the [petitioner] committed child neglect by failing to seek timely medical treatment for head injuries the victim sustained on April 16, 2007; count 3, the [petitioner] committed aggravated child abuse on or about June 15, 2007, by causing severe head injuries to the victim, including anoxic brain damage, acute subdural and subarachnoid hemorrhages, retinal hemorrhages, and severe seizures; count 4, the appellant committed aggravated child neglect by neglecting the victim's welfare and failing to seek timely medical treatment for seizures the victim experienced on the morning of June 15, 2007, and his “decreased physical abilities throughout that day;” count 5, the appellant committed aggravated child neglect by neglecting the victim's welfare and failing to seek timely medical treatment for the seizures the victim experience on or about Wednesday, June 13, 2007; count 6, the appellant committed aggravated child abuse by causing a subdural hematoma and other brain trauma to the victim between May 29 and June 15, 2007; and count 7, the appellant committed aggravated child abuse by causing a fracture to the victim's left ulna between May 29 and June 15, 2007.

Id. at *7.

         The petitioner declined to put on proof. Outside the presence of the jury, the trial court held a Momon hearing, where the petitioner confirmed his decision to waive his right to testify was voluntary.

(Doc. No. 13-26 at 2-5.)

         On September 3, 2009, the jury convicted the petitioner on all seven counts: aggravated child abuse, count 1, offense date April 16, 2007; child neglect, count 2, offense date April 16, 2007; aggravated child abuse, count 3, offense date June 15, 2007; aggravated child neglect, count 4, offense date June 15, 2007; aggravated child neglect, count 5, offense date June 13 to June 14, 2007; aggravated child abuse, count 6, offense date May 29 to June 15, 2007; and aggravated child abuse, count 7, offense date May 29 to June 15, 2007. (Doc. No. 13-1 at 105- 11.) The trial court sentenced the petitioner to 25 years in prison for each of the aggravated child abuse convictions in Counts 1, 3, and 6. (Id.) It merged Count 2 with Count 1 and ordered the sentences for all the other convictions to run concurrently with one of the 25-year sentences, for a total effective sentence of 75 years. (Id.)

         On direct appeal, the Tennessee Court of Criminal Appeals reversed the petitioner's convictions on counts 2, 5, and 7, finding that there was insufficient evidence to support them. (Doc. No. 13-16.) The court affirmed in all other respects in its opinion dated May 3, 2012. (Id.) The Tennessee Supreme Court denied permission to appeal on September 20, 2012. (Doc. No. 13-19.)

         The petitioner filed a pro se petition for post-conviction relief in the trial court on June 18, 2013. (Doc. No. 13-20 at 53.) The court appointed counsel, who took no action in the case and was replaced by substitute counsel on January 14, 2015. (Id. at 64, 67.) The petitioner's new attorney filed an amended post-conviction petition on February 27, 2015. (Id. at 70.) The court held a hearing on the petition on April 22, 2015 (id. at 80) and denied relief on January 11, 2016. (Id. at 81-104.) The Tennessee Court of Criminal Appeals affirmed on January 27, 2017 (Doc. No. 13-26), and the petitioner did not seek discretionary review from the Tennessee Supreme Court.

         The petitioner's petition for writ of habeas corpus pursuant to Section 2254 is deemed filed in this court on April 28, 2017 (Doc. No. 1 at 9), and the respondent acknowledges that it is timely. (Doc. No. 21 at 2.)

         II. ISSUES PRESENTED FOR REVIEW

         The petition raises the following claims for relief:

         1. There is insufficient evidence to support the petitioner's convictions for aggravated child abuse in counts 1, 3, and 6. (Doc. No. 1 at 4.)

         2. The trial court erred by not severing the charged offenses for trial. (Doc. No. 1 at 6.)

         3. The trial court erred by instructing the jury that the petitioner's co-defendant was an accomplice. (Doc. No. 1 at 6.)

         4. The petitioner's sentence is excessive and was based on facts not found by the jury in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). (Doc. No. 1 at 7.)

         5. Trial counsel was ineffective for failing to provide adequate information and advice about waiving the right to testify at trial. (Doc. No. 1 at 7.)

         6. Trial counsel was ineffective for failing to call certain witnesses. (Doc. No. 1 at 8.)

         7. Trial counsel was ineffective for failing to file a motion in limine to exclude evidence about “living in the projects and on the streets.” (Doc. No. 1 at 8.)

         8. Cumulative effect of trial counsel's ineffectiveness warrants a new trial. (Doc. No. 1 at 8.)

         III. STANDARD OF REVIEW

         The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal court may only grant relief if it finds that the error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v. Warren, 311 Fed.Appx. 798, 803-04 (6th Cir. 2009).

         AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and federalism.'” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). AEDPA's requirements “create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained, AEDPA's requirements reflect “the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a substantially higher threshold” for obtaining relief than a de novo review of whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).

         Specifically, a federal court may not grant habeas relief on a claim rejected on the merits in state court unless the state decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (d)(2). A state court's legal decision is “contrary to” clearly established federal law under Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. An “unreasonable application” occurs when “the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A state court decision is not unreasonable under this standard simply because the federal court finds it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court's decision applies federal law in an objectively unreasonable manner. Id. at 410-12.

         Similarly, a district court on habeas review may not find a state court factual determination to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination; the determination must be “‘objectively unreasonable' in light of the evidence presented in the state court proceedings.” Young v. Hofbauer, 52 Fed.Appx. 234, 236 (6th Cir. 2002). “A state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding' only if it is shown that the state court's presumptively correct factual findings are rebutted by ‘clear and convincing evidence' and do not have support in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 & n.3 (6th Cir. 2014) (observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not read Matthews to take a clear position on a circuit split about whether clear and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under Section 2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was ‘based on' that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the merits by a state court “is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner carries the burden of proof. Id.

         Even that demanding review, however, is ordinarily only available to state inmates who have fully exhausted their remedies in the state court system. Title 28 U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal habeas court to the state courts. Pinholster, 563 U.S. at 182. This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (explaining that exhaustion “generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review”). Moreover, the substance of the claim must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

         The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see also Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a claim has never been presented to the state courts, but a state court remedy is no longer available (e.g., when an applicable statute of limitations bars a claim), then the claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 731-32.

         If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Id. at 750. The burden of showing cause and prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him [;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause include the unavailability of the factual or legal basis for a claim or interference by officials that makes compliance “impracticable.” Id. To establish prejudice, a petitioner must demonstrate that the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having shown cause, petitioners must show actual prejudice to excuse their default”). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot establish prejudice, the question of cause is immaterial.

         Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)); accord Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

         IV. ANALYSIS

         A. SUFFICIENCY OF THE EVIDENCE

         The petitioner alleges in Claim 1 that there was insufficient evidence of serious bodily injury to support his convictions for aggravated child abuse in Counts 1 and 6 and insufficient evidence that he committed the offense underlying the aggravated child abuse conviction in Count 3. (Doc. No. 1 at 4-5.) He challenged the sufficiency of the evidence for all of his convictions on direct appeal. As pertinent to the current claim, the Tennessee Court of Criminal Appeals found as follows:

The appellant argues that the evidence is insufficient to support the convictions. When an appellant challenges the sufficiency of the convicting evidence, the standard for review by an appellate court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial evidence for those inferences drawn by the jury. See Id. Because a jury conviction removes the presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the burden of demonstrating to this court that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.'” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State v. Marable, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the same whether the conviction is based upon direct or circumstantial evidence.'” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
1. Aggravated Child Abuse - Counts 1, 3, 6, . . .
The appellant contends that the evidence is insufficient to support his aggravated child abuse convictions. A defendant is guilty of aggravated child abuse when the defendant commits the offense of child abuse and the conduct results in serious bodily injury to the child. Tenn. Code Ann. § 39-15-402(a)(1). Child abuse occurs when a person “knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury.” Tenn. Code Ann. § 39-15-401(a). “A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). Bodily injury “includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty[.]” Tenn. Code Ann. § 39-11-106(a)(2). At the time of the appellant's trial, serious bodily injury was defined as bodily injury that involved
(A) a substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.

Tenn. Code Ann. § 39-11-106(a)(34)(A)-(E). FN3

FN3 We note that in July 2009, two months before the appellant's trial, our state code was amended to define “serious bodily injury to the child” in Tennessee Code Annotated Section 39-15-402(d) as
includ[ing], but . . . not limited to, second-or third-degree burns, a fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain contusion, injuries to the skin that involve severe bruising or the likelihood of permanent or protracted disfigurement, including those sustained by whipping children with objects.
Moreover, “[a] broken bone of a child who is eight (8) years of age or less” was added to the list for serious bodily injury in Tennessee Code Annotated section 39-11-106(a)(34).

         The trial court instructed the jury on criminal responsibility. A defendant is criminally responsible for an offense committed by another if, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the [defendant] solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). “‘[U]nder the theory of criminal responsibility, presence and companionship with the perpetrator of a felony before and after the commission of the crime are circumstances from which an individual's participation may be inferred.'” State v. Dorantes, 331 S.W.3d 370, 386 (Tenn. 2011) (quoting State v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001)). In addition, “no specific act or deed need be demonstrated.” Id. (citing State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998)). A defendant also is criminally responsible for an offense committed by another if,

[h]aving a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to take a reasonable effort to prevent commission of the offense.
A step-parent and caretaker has a duty to protect a child from harm and provide the child with emergency attention. State v. Hodges, 7 S.W.3d 609, 623 (Tenn. Crim. App. 1998).
For count 1, the State alleged that the appellant committed aggravated child abuse on or about April 16, 2007, by causing severe head injuries to the victim, including a concussion, inability to open his eyes, and multiple facial bruises. The appellant asserts that the evidence is insufficient to support the conviction because it failed to establish that the victim suffered serious bodily injury. The evidence shows that the victim's eyes were swollen shut, that he had numerous bruises and abrasions on his face and upper body, and that he had knots on his head. He also had a concussion, which Dr. Stack explained was a disruption in brain function, and would not open his eyes. In our view, such injuries, particularly in a seventeen-month-old child, qualify as serious bodily injury. Therefore, the evidence is sufficient to support the conviction.
For count 3, the State alleged that the appellant committed aggravated child abuse on or about June 15, 2007, by causing severe head injuries to the victim, including anoxic brain damage, acute subdural and subarachnoid hemorrhages, retinal hemorrhages, and severe seizures. The appellant asserts that the evidence is insufficient to support the conviction because the evidence is entirely circumstantial and indicates the victim's mother caused the injuries. Dr. Moutsious testified that the victim had bleeds in his brain and that one of the bleeds occurred within a couple of days of June 15. Although Dr. Moutsious could not say precisely when the bleed occurred, she was concerned that the victim had sustained a brain injury within minutes of the time he stopped breathing. The evidence demonstrated that the appellant and Watkins were the victim's sole caregivers in the days leading up to the victim's June hospitalization. Watkins told the police that she allowed the appellant to discipline the victim, that he took the victim into a room and shut the door, and that she heard thuds in the room. Moreover, the evidence showed that the appellant was alone with the victim just before the victim experienced the seizure that caused him to stop breathing. Therefore, the evidence is sufficient to show that the appellant caused the anoxic brain damage, acute subdural and subarachnoid hemorrhages, retinal hemorrhages, and severe seizures that the victim suffered on or about June 15.
For count 6, the State alleged that the appellant committed aggravated child abuse by causing a subdural hematoma and other brain trauma to the victim between May 29 and June 15, 2007. The appellant argues that the evidence is insufficient to support the conviction because (1) the State failed to show that the victim suffered a subdural hematoma and brain trauma other than the subdural hematoma and brain trauma related to count 3, (2) the State failed to show that the victim suffered serious bodily injury, and (3) the evidence does not ensure juror unanimity. Dr. Moutsious testified that the victim suffered multiple brain injuries that were caused by significant force. She said that while one of the victim's brain bleeds occurred within a couple of days of June 15, other bleeds were older than two weeks. In her opinion, the victim had a brain injury before the Wednesday, June 13, seizure. As stated above, Watkins and the appellant were the victim's sole caregivers, and Watkins testified that the appellant pushed the victim and “would thump” the victim when the appellant disciplined the victim. Also, in her statement to police Watkins said that she heard thuds when the appellant disciplined the victim. Therefore, the evidence is sufficient to show that the appellant caused prior brain trauma to the victim, which resulted in older brain bleeds. Moreover, we are unpersuaded by the ...

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