Assigned on Briefs September 4, 2019
from the Circuit Court for Gibson County No. 19074 Clayburn
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
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Affirmed; Case Remanded
C. Cooper, Martin, Tennessee, for the appellant, Thomas R.
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.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and Timothy L. Easter, JJ., joined.
L. HOLLOWAY, JR., JUDGE.
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).
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.
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.
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
State showed K.W. a portion of the video from her forensic
interview which contradicted her testimony. 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.
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.
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?
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.
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.
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.
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."
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
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
[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.
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."
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."
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.
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
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[.]"
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.
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