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State v. Boykin

Court of Criminal Appeals of Tennessee, Jackson

October 17, 2019

STATE OF TENNESSEE
v.
THOMAS R. BOYKIN

          Assigned on Briefs September 4, 2019

          Appeal from the Circuit Court for Gibson County No. 19074 Clayburn Peeples, Judge

         A Gibson County jury convicted Thomas R. Boykin, Defendant, of two counts of aggravated child abuse of a child under eight years of age. The trial court sentenced Defendant as a Range II multiple offender to consecutive thirty-five-year sentences at 100%. In this delayed direct appeal, Defendant challenges his convictions, claiming the trial court improperly admitted evidence, cumulative error, and insufficiency of the evidence. Defendant also challenges his sentences, claiming improper use of sentencing enhancement factors and consecutive sentencing factors. After a thorough review of the record and applicable case law, we affirm the judgments of the trial court and remand for entry of corrected judgments.

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

          Cristy C. Cooper, Martin, Tennessee, for the appellant, Thomas R. Boykin.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Tommy A. Thomas, District Attorney General (pro tem); and Hillary Parham and Jerald Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Procedural History

         Following sentencing, Defendant filed an untimely motion for a new trial, which the trial court denied. Defendant then filed an untimely appeal, which this court dismissed in August 2016. State v. Thomas R. Boykin, No. W2016-00172-CCA-R3-CD, 2016 WL 4575721, at *3 (Tenn. Crim. App. Aug. 31, 2016), no perm. app. filed. Defendant filed a pro se Petition for Post-Conviction Relief, and after a hearing, the post-conviction court granted Defendant a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113. Defendant then timely filed a notice of appeal on June 28, 2018. On October 22, 2018, Defendant filed a motion requesting that this court remand the case for the filing of a motion for a new trial pursuant to Tennessee Code Annotated section 40-30-113(a)(3) before continuing with the delayed appeal, and this court granted the motion. Order, State v. Thomas R. Boykin, W2018-01207-CCA-R3-CD (Tenn. Crim. App. Nov. 1, 2018). The trial court heard Defendant's motion for new trial and denied it on March 11, 2019. This court ordered the trial court clerk to supplement the appellate record with all documents relating to the motion for a new trial, and the supplement was filed April 23, 2019. Order, State v. Thomas R. Boykin, W2018-01207-CCA-R3-CD (Tenn. Crim. App. Mar. 22, 2019).

         Factual History

         Jury Trial

         Officer Brent Autrey testified that, in March of 2014, he was employed with the Milan Police Department ("MPD") and that he responded to a call on Short Anderson Street regarding an unresponsive child, the three-year-old victim. Officer Autrey stated that medical personnel were at the scene when he arrived. He noted that the victim was lying on a bed, fully dressed, and surrounded by paramedics. Officer Autrey asked Defendant and the victim's mother, Mary Taylor, to step into a different room to give paramedics room to work. Defendant told Officer Autrey that he left the victim in the bathtub for "just a second" and told the victim not to get out of the bathtub. Defendant informed Officer Autrey that, when he returned to the bathroom, the victim was "coming in and out of consciousness" and that "one eye was looking at [Defendant] and one eye was looking away." Defendant stated that he picked up the victim and ran across the street to the house of a neighbor, Vicky Scott, because he and Ms. Taylor did not have a phone to call 911. Defendant also told Officer Autrey that the victim received burns while playing with his cousins the previous weekend but that he was unsure how that happened.

         Sergeant Chris Matheney testified that he was a patrol sergeant with the MPD. He stated that he responded to the call on Short Anderson Street on March 5, 2014. When Sergeant Matheney arrived, paramedics were bringing the victim down the stairs, and Sergeant Matheney followed them to the hospital. Sergeant Matheney witnessed hospital personnel remove the victim's pants and noted that the victim's right buttock "was missing some skin and then there were . . . diagonal marks across his buttocks that appeared to be burns." Sergeant Matheney testified regarding each of the photographs taken of the victim at the hospital that night. He stated that the photos showed skin missing from the victim's wrist, blisters on the victim's left hand, skin missing from the victim's left thumb, the victim's swollen knuckles, marks on the victim's face, and severe burns on the victim's buttocks. Sergeant Matheney stated that, while he did not remember visible injuries to the victim's abdomen, the victim kept "clutching his stomach like he was hurting[.]" Once his lieutenant arrived at the hospital to take over the investigation, Sergeant Matheney returned to Defendant's residence on Short Anderson Street and took photographs of heaters in the home. On cross-examination, Sergeant Matheney agreed that he did not see who caused the burns or scars on the victim.

         The victim's sister, K.W., was seven years old at the time of the offense and nine years old at the time of trial. K.W. testified that she currently lived in a foster home but that she used to live with her brother, the victim, her sister, "J.W.," her mother, Ms. Taylor, and "the mean man," whom she identified as "T-Ray." K.W. stated that, on the day the victim went to the hospital, he slipped in the bathtub. K.W. said that she heard a "boom" when Defendant was in the bathroom alone. K.W. remembered that she previously told the forensic interviewer that she heard "[t]he mean man put [the victim's] head in the water and dragged [sic] [the victim] in the tub. I mean, dragged him into something. That ain't [sic] the tub." She testified that the victim said "glub, glub, glub, and he cried." K.W. stated that Defendant often hit the victim with a belt because he "peed his pants." K.W. said that she knew Defendant hit the victim with a belt, even though she never saw it, because Defendant would also hit her with a belt. K.W. did not recall Defendant hitting the victim with his fists. K.W. stated that her mother never stopped Defendant from hitting because she was "too scared" of Defendant. K.W. recalled Defendant "being mean" to her mother and her mother saying "no" and "stop" to Defendant.

         The State showed K.W. a portion of the video from her forensic interview which contradicted her testimony.[1] The State asked K.W. if what she said in the video was true. K.W. said that the video was true and agreed that she did not remember because it had been a long time since the video was recorded.

         On cross-examination, K.W. agreed that she told the forensic interviewer that the victim told her he "got burned by the heater." K.W. stated that she went into her mother's room and saw "black stuff" on the heater after the victim was burned. Defense counsel identified seven individuals to K.W. and asked her if any of those individuals suggested to her that the victim's injuries occurred in a certain way. K.W. said no.

         On redirect examination, K.W. stated that the victim did not tell her he was burned on the heater, as she stated in the forensic interview, but that she deduced that he was burned on the heater because she saw "black stuff" on it. On recross-examination, the following exchange occurred:

[DEFENSE COUNSEL]: [The prosecutor] changed your answer [on redirect examination]. But your answer to me [on cross-examination] was [that] you told [the forensic interviewer] that [the victim] told you he got burned on mama's heater. Is that true?
[K.W.]: Nah. I forgot. I forgot he --
[DEFENSE COUNSEL]: In fact, you forget a lot of stuff being nine years old. You would rather be doing something else than this, wouldn't you?
[K.W.]: Uh-huh.

         Mary Taylor testified that she was the victim's mother and Defendant's ex-girlfriend. Ms. Taylor stated that, at the beginning of 2014, Defendant lived with her and her three children and that her children called Defendant "T-Ray." Ms. Taylor agreed that the grand jury indicted her in the present case but stated that she gave her statement to investigators before she was indicted. She testified that her statement to investigators was not in exchange for a plea agreement.

         Ms. Taylor said that, over the course of "a few weeks," Defendant abused the victim. Ms. Taylor testified that, on March 5, 2014, the victim "had an accident in his pants." She said that Defendant went into the victim's room to talk to him about his accident and that she heard Defendant yelling and the victim saying "no." Then Ms. Taylor heard "the wind from the belt" and "something that sounded like somebody falling on the floor." Ms. Taylor went into the room and asked Defendant if he was hitting the victim, and Defendant said no. Defendant and Ms. Taylor argued about Defendant hitting the victim. Defendant told her, "[W]hat did I tell you about interfering when I'm disciplining him?" Defendant told Ms. Taylor to go to her room, and she complied. Later, Defendant entered Ms. Taylor's bedroom, continued arguing, and choked her. Ms. Taylor blacked out. Ms. Taylor testified that Defendant then left the home, and she went to check on the victim. She said that the victim did not want to come to her. When Defendant returned to the home, Ms. Taylor ran a bath for the victim. Ms. Taylor testified that the victim was in the tub, and Defendant was in the bathroom with him. She said that she did not hear a thump in the bathroom. Ms. Taylor stated that Defendant wrapped the victim in a towel and brought him out of the bathroom and that the victim was "going in and out" and "his eyes were rolling back." Ms. Taylor said that she and Defendant took the victim across the street to Ms. Scott's house to get assistance.

         Ms. Taylor then testified as to an incident in early February 2014 when the victim's hands were broken. Defendant was in the living room disciplining the victim with a belt, and she "heard [her] son hit the floor." Ms. Taylor entered the living room and saw Defendant with the belt wrapped around his hand and about one foot of it loose. Defendant and Ms. Taylor argued about Defendant hitting the victim with a belt, and Defendant told her that the victim "fell on his own." Ms. Taylor testified that Defendant told the victim to "stop crying and get up." Ms. Taylor saw the victim rubbing his hands, and the victim did not want Ms. Taylor to touch him. Defendant then asked her, "[W]hat did I tell you about interfering when I'm disciplining him?" Defendant followed her to their bedroom, and he bit her.

         Ms. Taylor testified that Defendant later told her that the victim burned his hands on the heater. Ms. Taylor put petroleum jelly and peroxide on the burns. Ms. Taylor stated that, about a week after the victim burned his hands, Defendant told her the victim backed into a heater and burned his buttocks while the victim was wrapped with a towel. Ms. Taylor said that the towel was not burned, so she questioned Defendant's explanation. This led to another confrontation between Ms. Taylor and Defendant. Ms. Taylor treated the burns herself because Defendant told her the Department of Children's Services ("DCS") would take her children if she took the victim to the hospital. Ms. Taylor recalled that the burns on the victim's buttocks occurred when Defendant was disciplining the victim. Ms. Taylor did not remember telling investigators that she heard the victim screaming on the day his buttocks were burned but agreed she may have said that. Ms. Taylor testified that she spanked her children's hands as discipline but never used a switch or belt because she was "scared of the marks that it may leave."

         Ms. Taylor testified that, as of March 5, 2014, she had been treating the burns on the victim's buttocks for about a week and the burns on his hands for about two weeks. Ms. Taylor looked at the photographs of the victim that were taken at the hospital and testified that she did not know how marks got on his face and abdomen. She testified that she did not inflict any of the injuries on the victim. Ms. Taylor stated that she did not do more to protect the victim because Defendant threatened her, and she was scared. Ms. Taylor testified that she never told her daughters what to say if questioned regarding the victim's injuries and that she had not spoken with K.W. between March 5, when the incident occurred, and March 10, when K.W. gave her forensic interview.

         The following exchange then occurred:

[THE STATE]: What kind of child is [K.W.]?
[MS. TAYLOR]: She's a very good child. She's a sweet child.
[THE STATE]: Is she an honest child?
[MS. TAYLOR]: The only way she lies is when she thinks she's going to get in trouble.
[THE STATE]: Would she lie about something like this?
[MS. TAYLOR]: No, sir.
[THE STATE]: Would she lie about what she saw?
[MS. TAYLOR]: No, sir.
[THE STATE]: She wasn't getting in any trouble, was she?
[MS. TAYLOR]: No, sir.

         Ms. Taylor testified that she and Defendant dated for two months at the end of 2013 before he moved in with her and her children. She stated that her children never had any marks on them while she dated any previous boyfriends. Ms. Taylor said that the victim's wetting his pants "triggered what got [the victim] in trouble" with Defendant. She testified that the victim had been potty-trained, but when they moved into a new home at the beginning of 2014, the victim "was afraid to go to the bathroom."

         On cross-examination, Ms. Taylor agreed that DCS had never taken her children before the incident in March 2014 but stated that she believed that DCS would take children with marks on them. She said that the grand jury indicted her on the same charge as Defendant and that she pled guilty pursuant to the State's offer of "a year['s] probation on a misdemeanor charge." Ms. Taylor testified that, after the victim's hands were injured, the victim did not cry when Ms. Taylor held his hands. She stated that she did not notice his hands swelling until he burned his hands. Ms. Taylor agreed that she told medical personnel that the victim burned his hands and buttocks on the heaters in the home, that the marks and abrasions on the victim occurred when he was playing with Defendant's nephews, and that she had no explanation for the victim's broken hands. Ms. Taylor testified that she had never spoken with K.W. about the events of March 5, 2014. Defense counsel asked her, "So if she . . . says that [the victim burned himself on the heaters] on the stand, she's believable, isn't she?" Ms. Taylor replied, "Correct."

         On redirect examination, Ms. Taylor testified that, although the victim was "blacked out" and his "eyes [were] rolling back in his head[, ]" Defendant took the time to fully clothe the victim before taking him across the street to seek assistance. On recross-examination, Ms. Taylor said that she thought the two original charges against her each would have carried twenty-five years' incarceration and that she pled to a misdemeanor for a suspended sentence of eleven months and twenty-nine days.

         Autumn Warren testified that she worked as a registered nurse at LeBonheur Children's Hospital in March of 2014, when the victim was a patient. Ms. Warren said that, when she was changing the victim's diaper, he "started crying, and saying, 'Don't hurt me. Don't hurt me.'" After Ms. Warren completed the diaper change, she placed her hand behind the victim's neck to help him sit up. Ms. Warren stated that, as soon as she touched his neck, the victim said, "'Don't choke me' and then was just crying and saying that he has not been a bad boy."

         Dr. Karen Lakin, the Medical Director at LeBonheur Children's Hospital and an assistant professor of pediatrics at the University of Tennessee, testified as an expert in both pediatrics and child abuse pediatrics. Dr. Lakin examined the victim and his medical records. She said that the burn on the victim's hand was a "partial thickness burn" which went into the deeper layers of skin on the palm. Dr. Lakin noted the scars on the victim's abdomen were "patterned injuries because they're actually in the shape of something" similar to a looped extension cord. Dr. Lakin stated that the victim's abdominal scars were "non-accidental injur[ies]." She testified that the burns on the victim's buttocks were "very deep burns" with "some patterned areas." Dr. Lakin said that, when burns are that severe and left untreated, the "delay of care" is "concerning for non-accidental trauma." Dr. Lakin testified that children may accidentally burn themselves with the same severity; however, with accidental burns, doctors see "a diffuse or glancing pattern" instead of a patterned injury where "something [was] preventing a child from getting away from the heat source[.]"

         Dr. Lakin stated that the victim also had internal trauma, the most serious of which was an acute subdural hemorrhage, or bleeding in the brain, that likely occurred within the seventy-two hours prior to the victim's CT scan. Dr. Lakin testified that a subdural hemorrhage can be fatal and occurs from direct trauma or violent shaking rather than a "trivial household fall[.]" Because the victim also had abrasions on the sides of his head, Dr. Lakin stated, "[I]f [he was] hit on one side of the head and [his] head [flew] to the opposite side and hit[] a hard surface then [a subdural hemorrhage] might be a mechanism that would occur." She said that symptoms of an acute subdural hemorrhage included changes in behavior, vomiting, seizures, and significant pain.

         Dr. Lakin testified that the victim also had a duodenal hemorrhage, or bleeding in the abdomen, which occurs from blunt force trauma. She stated that a duodenal hemorrhage can happen accidentally when children are playing, typically as an injury from bicycle handlebars. Dr. Lakin said that the ...


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