United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
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. Â§ 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.
FACTS AND PROCEDURAL HISTORY
Tennessee Court of Criminal Appeals cogently summarized the
evidence at trial when it reviewed the petitioner's
[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.
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.'”
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.
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.
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,
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. 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
State made the following election of offenses at the close of
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.
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.)
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
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.)
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.
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.)
ISSUES PRESENTED FOR REVIEW
petition raises the following claims for relief:
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.)
trial court erred by not severing the charged offenses for
trial. (Doc. No. 1 at 6.)
trial court erred by instructing the jury that the
petitioner's co-defendant was an accomplice. (Doc. No. 1
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.)
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.)
Trial counsel was ineffective for failing to call certain
witnesses. (Doc. No. 1 at 8.)
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.)
Cumulative effect of trial counsel's ineffectiveness
warrants a new trial. (Doc. No. 1 at 8.)
STANDARD OF REVIEW
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).
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).
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.
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.
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).
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.
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
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).
SUFFICIENCY OF THE EVIDENCE
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
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
(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
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
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.
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 ...