Court of Criminal Appeals of Tennessee, Nashville
Session August 20, 2019
from the Criminal Court for Davidson County No. 2013-D-3164
Cheryl Blackburn, Judge
of his Davidson County Criminal Court jury convictions of one
count of felony murder in the perpetration of aggravated
child neglect, one count of the facilitation of felony murder
in the perpetration of aggravated child abuse, three counts
of aggravated child abuse, one count of aggravated child
neglect, and one count of the facilitation of aggravated
child abuse, the defendant, Donald Lee Harris, appeals. The
defendant alleges that the trial court erred by permitting
the State to introduce the victim's medical records on
rebuttal, that the State's election of offenses was
insufficient to ensure jury unanimity, that the trial court
erred in its jury instructions regarding criminal
responsibility for the conduct of another, that the evidence
was insufficient to support his convictions, and that the
total effective sentence of life plus 75 years is excessive.
The defendant's convictions of felony murder (Count 9),
facilitation of felony murder (Count 8), aggravated child
abuse (Counts 2 and 3), aggravated child neglect (Count 7),
and facilitation of aggravated child abuse (Count 1) are
affirmed. We find no error in the sentencing decisions of the
trial court. Because the State's election of offenses was
insufficient to safeguard the defendant's right to a
unanimous verdict in Count 6, the defendant's conviction
in Count 6 is reversed. Because dual convictions of
aggravated child abuse in Counts 2 and 3 violate double
jeopardy principles, those convictions must be merged. The
case is remanded for a new trial on the offense of aggravated
child abuse in Count 6 and for the entry of corrected
judgment forms reflecting the merger of Counts 2 and 3.
R. App. P. 3; Judgments of the Criminal Court Affirmed in
Part; Reversed in Part; Remanded
B. Russ (on appeal) and Leah Wilson (at trial), Nashville,
Tennessee, for the appellant, Donald Lee Harris.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; Victor S. Johnson
III, District Attorney General; and Pam Anderson and Doug
Thurman, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which John Everett Williams, P.J., and Robert H. Montgomery,
Jr., J., joined.
CURWOOD WITT, JR., JUDGE
Davidson County Grand Jury charged the defendant and
Shantonio Hunter with six counts of aggravated child abuse,
one count of aggravated child neglect, one count of felony
murder in the perpetration of aggravated child abuse, and one
count of felony murder in the perpetration of aggravated
child neglect for injuries inflicted on Ms. Hunter's
three-year-old son, E.H., that eventually led to his death.
April 26, 2013, Metropolitan Nashville Police Department
("Metro") Officer Brandon O'Guinn responded to
a call of an unresponsive child at 919 North 12th Street in
Nashville. When Officer O'Guinn approached the apartment,
he encountered Ms. Hunter in the doorway, screaming. She
"alluded to the right side of the door," and he
entered the apartment to the right. Inside the apartment,
Officer O'Guinn observed "a small boy on an air
mattress . . . being given CPR by the defendant." When
he checked for the victim's pulse and found none, Officer
O'Guinn told the defendant to continue CPR. He recalled
that the emergency medical personnel arrived within two
minutes, and the victim was taken to Vanderbilt University
Medical Center ("VUMC") via ambulance. After the
victim was taken from the scene, Officer O'Guinn asked
the defendant, who was visibly upset, what had happened.
Officer O'Guinn testified,
He had indicated that the child had been sick overnight
several times and [the victim] had -- defecated and thrown up
on himself. He had been given a bath several times. I do
recall the mattress being wet underneath where the small
child was laying and I initially, I mean just thinking,
thought that he might have drowned in the tub. I remember
asking did -- at any time did he go under the water, and he
said no. But that was the reason . . . for the dampness under
the body and why he was wet at the time, that he had just got
out of the tub because he had been sick and had some issues
Officer Joseph Progar, who also responded to the scene, went
into the bathroom and saw "that the bathtub was drained
but it was still wet, and there was like a towel or washcloth
that was in the tub." The floor was wet, and another
towel lay on the toilet seat. The defendant, who was
"very upset," told Officer Progar "[t]hat the
child had soiled himself and that the child had, you know,
like two baths within about an hour and a half or so."
Officer Progar also observed a bottle of children's cold
medication on the floor next to the air mattress.
Crime Scene Investigator Joe Williams responded to VUMC,
where he spoke with Detective Selene Julia before
photographing the victim's body. While photographing the
body, Investigator Williams observed a bruise "above the
rib stomach area" that "had . . . real faded dots
from like where a knuckle" had struck him with a fist.
Tilley, who was a Metro Crime Scene Investigator at the time
of the victim's death, photographed the apartment and
collected various items of evidence, including a green fabric
belt with a ring loop closure, a "white metal stud
belt" that was broken and stained with something reddish
brown, a piece of black belt, and an orange polo shirt
stained with a reddish-brown substance.
Detective Selene Julia responded to VUMC, and, when she
arrived sometime between 7:30 and 8:00 a.m., the victim had
not yet been pronounced dead. By the time she saw him,
however, he had been pronounced dead. Detective Julia
observed "numerous physical injuries on him,"
including "noticeable injures" on the victim's
chest, stomach, sides, and face.
Julia identified the defendant's voice on telephone
recordings that were exhibited to her testimony and played
for the jury. In the first recording played for the jury, the
defendant said of the victim, whom he called "Man
Man," "He got a[n] ass-whooping from me Monday. . .
. He got hit Wednesday night." The defendant also said,
"Man Man got put out of school that Monday when I
whooped him. That's when he got put out of school.
It's the same week that he died." In the second
recording, the defendant stated that he and the co-defendant,
the victim's mother, had "lived together for a whole
year basically." In the third recording, the defendant
said that he "was not the last one who hit Man
Man," explaining, "And . . . it all happened
Wednesday. When I got home from work. That's when it
happened. Because me and her got to arguing about something.
She took it out on him." The defendant said that he had
not initially told the police about Ms. Hunter's
involvement, saying, "That's why I didn't say
nothing because I love her. . . . I was gonna do life for the
Davidson County Medical Examiner Doctor David Zimmerman, who
performed the autopsy of the victim, testified that the
victim's body was essentially covered with fresh,
healing, and old wounds. The victim had multiple abrasions
"on the forehead, on both cheeks, on the chin and on the
bridge of the nose." The skin on the bridge of the
victim's nose, his frenulum, and the skin "on the
left side on the inside of the [lower] lip" all bore
lacerations. Doctor Zimmerman noted that the wounds on the
bridge of the victim's nose were starting to heal,
indicating that they had been inflicted "[h]ours to a
couple of days" before the autopsy. Similarly, abrasions
on the victim's lower lip, chin, and left cheek were
"hours to days" old. The injuries to the inside of
the victim's mouth had "been there a couple of
hours" before the victim's death.
skin underneath both of the victim's eyes was bruised,
and Doctor Zimmerman observed bruises on the victim's
cheek and temple. The victim had abrasions on his face and
behind his ear as well as bruising, abrasions, and a scar
underneath his chin and an abrasion on the left side of the
neck. Upon pulling back the skin of the victim's head,
Doctor Zimmerman found blood between the galea, the layer of
connective tissue "attached right to the skull,"
and the bones of the skull "kind of on the forehead
going up onto the scalp" that coincided with
"abrasions of the skin" in that same area. More
impact than a simple trip and fall would have been necessary
to cause the subgaleal hemorrhage.
Zimmerman observed scarring patterns on the victim's body
that looked like small dashes as well as scarring above the
victim's right eye and on his cheek. Doctor Zimmerman
observed a contusion on the victim's chest. Scars on the
upper left quadrant of the victim's torso "were at
least months or weeks old. . . . They were completely
healed." An abrasion on the tip of the victim's
penis formed the same small dot pattern as those on other
parts of the victim's body. Doctor Zimmerman observed an
abrasion on the victim's inner right thigh that formed
that same pattern as well as abrasions, scars, and contusions
on the right buttock, right torso, and right arm. Similar
circular contusions also appeared near the victim's
Zimmerman observed "abrasions, contusions, and . . .
scars" on the victim's back and buttocks, some of
which formed a linear pattern. Doctor Zimmerman explained,
If a long thin object were used and it struck the skin,
it'll press the blood out of the skin right where it hits
and it'll cause the capillaries to rupture at the edges
and that'll cause the bruising around where the object
was hit. And there won't necessarily be any bruising
directly where the object hit.
abrasions on the right side of the victim's chest that
were "hours to days" old lay at right angles,
indicating that those abrasions were "either two impacts
with something that would abrade the skin or . . . a single
impact of something that has a right angle on it." The
scars on the victim's back and buttocks, both the round
and the linear, were "all well-healed scars so weeks to
months old." In addition to these scars, Doctor
Zimmerman found "multiple well-healed scars, weeks to
months old," on the back of the victim's legs that
appeared to wrap around the backs and sides of the leg;
"there were significantly more on the right leg than on
the left." He also found "some scabbed
abrasions" on the victim's legs that took the form
of "dark dots." Those were "hours to days
old." There were abrasions on the left inner thigh, both
partially healed and acute, as well as scarring. The circular
pattern contusions also appeared on the back of the
victim's left leg. Doctor Zimmerman said that the linear
contusions on the back of the victim's leg were
consistent with a long strap-like item striking the skin.
Contusions and scarring also appeared on the back of the
victim's right hand.
Zimmerman found contusions and "small little dots of
abrasions" on the abdomen and a variety of abrasions on
the abdomen near the belly button. He observed that the
victim's abdomen was "protuberant which means
it's kind of sticking out." Additionally, "some
dark discoloration of the abdomen," indicating a bruise,
aligned to injuries that Doctor Zimmerman found to the
victim's intestines. Upon internal examination of the
victim's abdomen, Doctor Zimmerman found "about 45
milliliters of serosanguinous fluid and fibrinopurulent
debris." The amount of serosanguinous fluid, "the
same fluid that you would see in a blister on your
skin," inside the victim's abdomen was equivalent to
"about one and a third cans of soda."
Fibrinopurulent debris, he explained, is a "stringy,
green, thick material that was on the organs, the surfaces of
the organs in the abdomen. And that's part of the
body's healing process. It has white blood cells and
other proteins to wall off any kind of infection that would
be in the abdomen." The presence of the serosanguinous
fluid and fibrinopurulent debris indicated that "there
was an acute peritonitis in the abdomen. That means
there's an infection in the abdomen." When he
examined the victim's intestines, Doctor Zimmerman found
that some of "the loops of the intestines were also
stuck together." He also observed "bruises on the
surfaces of both the small bowel and the colon" as well
as more than one "area of necrosis which means that part
was dead tissue. . . . the color wasn't right. It was
more of a grayish color, and there was also hemorrhage or
bleeding on the serosal surfaces as well." Doctor
Zimmerman testified that the process of necrosis would have
taken "hours or days."
Zimmerman found another 100 milliliters of serosanguinous
fluid in the victim's chest as well as "plural
adhesions, . . . where the outside surface of the lung is
stuck to the chest wall," that could be attributed to
either "some kind of infection or some sort of injury in
Zimmerman testified that peritonitis is typically accompanied
by symptoms such as pain in the abdomen, fever, irritability,
loss of appetite, vomiting, diarrhea, and decreased movement.
He said that peritonitis could be caused by "either an
injury or an infection that has spread to the abdomen"
and that, to cause peritonitis, an injury would have "to
be a hard enough injury where it can cause a hole in the
intestines or stomach. And then some of those contents spill
into the abdominal cavity and then the body tries to fight
off that infection that's occurring because of
that." He found evidence that the contents of the
victim's intestines had spilled into the abdominal cavity
when viewing the slides he created using material from the
outside of the victim's intestines. Upon examining the
material microscopically, he "saw some plant material on
the outside of the intestines." The presence of plant
material on the slides was consistent with the victim's
having an actual injury to his stomach or intestines. He said
that both the injury and the peritonitis would have been
treatable with antibiotics and fluids.
Zimmerman examined the "white stud belt" recovered
from the apartment and opined that the belt could have made
some of the abrasions he found on the victim's body and
agreed that "the small metal areas on the belt . . .
could make round scars on the skin." He said that a belt
without such studs, "especially if it hit with the edge
of the belt, . . . could make linear contusions." Doctor
Zimmerman testified that the impact of the knuckles of a
closed fist could have made the round contusions he observed
on the victim's abdomen. He agreed that blunt force to
the mouth could have caused the injuries inside the
Zimmerman agreed that there were abrasions and contusions
across a majority of the victim's body but testified
that, with prompt medical treatment of the injuries, the
victim could have survived. The failure to obtain prompt
medical care contributed to the victim's death.
Ultimately, he determined the cause of death to be multiple
blunt force trauma.
cross-examination, Doctor Zimmerman conceded that he was
unable to identify a tear in the victim's small
intestine, but he said that "there had to have been one
in order for that plant material to be there." He added
that, "[w]ith all the contusions on the abdomen, some
sort of blunt trauma of the abdomen would have caused"
the tear that led to the victim's death. He acknowledged
that "[a]n infection in the intestines could cause a
tear of the abdomen" but said that he "didn't
see any evidence of that. By infection, I mean like a
bacterial or a viral infection inside the intestines. I
didn't see any evidence of that under the
microscope." Doctor Zimmerman clarified that the belt
with studs on it could have caused "some of the
bruising" and "some of those linear abrasions"
but not the internal injuries. He explained, "[I]f a
belt were used to impart that much force on an abdomen to
cause those internal injuries, it would leave more than just
superficial abrasions on the skin." He acknowledged that
although a simple slip and fall would have been insufficient,
running into the corner of a table "could make a deep
enough injury to cause a subgaleal hemorrhage." Finally,
he said that the fluid in the victim's lungs could be
attributed to the services he received at the hospital but
that it was not "very likely" that any of his
injuries were sustained in the course of treatment.
Steele-Giles, Director at Gartland Child Development Center
("the Center"), testified that the victim enrolled
in January 2013 and attended somewhat sporadically until
April 22, 2013. Ms. Steele-Giles described the victim as
"a very good kid" who understood enough to follow
directions but had difficulty expressing himself. The victim
appeared to have "kind of like a speech problem,"
so Ms. Steele-Giles worked with him one-on-one "to get a
little bit of understanding." She tried to speak with
Ms. Hunter about the victim's issues "a few
times," but "[a] lot of times it was, you know,
like brush off, like ignore type of thing." Eventually,
however, she spoke to Ms. Hunter and "arranged to get
help for the child." That help was provided "one
time at our facility. And the other times they could not get
in contact with" Ms. Hunter.
Steele-Giles recalled that the victim "didn't want
to go" when his mother came to pick him up and would
cling to Ms. Steele-Giles when it got time to leave, which,
in hindsight, "was a red flag." She said that she
did not take any action at the time because, given his
limited ability to communicate, she could not be sure why the
victim did not want to leave. Because the victim was potty
trained and attended school in the winter and spring, Ms.
Steele-Giles had no occasion to view the victim's bare
Center did not use corporal punishment, and, on those
occasions when one child harmed another, the Center created
an incident report with one copy for the parents and another
for the Center. The victim was involved in incidents on March
25 and 26, 2013, that involved his hitting other children. On
one occasion, the victim stood on a chair and screamed. On
another he threw rocks on the playground. On April 4, 2013,
the victim was placed in timeout for spitting on the table.
The victim's file contained no documented cases of the
victim's injuring himself at the Center. After the victim
was absent on April 23, 2013, Ms. Steele-Giles attempted to
telephone Ms. Hunter on April 24, 2013. She left a message
but never received a return call.
Steele-Giles testified that she interacted often with the
defendant, saying, "If I needed to ask anything, a lot
of times Donald would speak for [Ms. Hunter]. And I
didn't think nothing bad because I actually thought he
was the father." She said that the defendant and Ms.
Hunter often arrived together to drop off and pick up the
victim and that Ms. Hunter had listed the defendant's
name in the portion of the application for naming the
testing on the orange polo shirt and three pieces of belt
collected from the scene established that reddish-brown
stains on those items was the victim's blood.
defendant did not testify but did choose to present proof.
Fire Department paramedic Richard Carney testified that he
had no independent recollection of having treated the victim
but acknowledged that the report he prepared following the
incident did not include any notation that the victim had a
torn frenulum. During cross-examination, however, Mr. Carney
maintained that he could not have torn the victim's
frenulum during the intubation procedure "because
I'm nowhere near that."
and professional counselor Bernard Charles Ihrig, who was
tendered as an expert in the field of child psychology,
testified that he had reviewed the victim's medical
records from Vanderbilt, Meharry, and Centerstone. He said
that Meharry Doctor Vanessa Elliott had given the victim a
"somewhat provisional" diagnosis of "potential
global developmental delay or other developmental delay"
in 2012 based upon answers provided by the co-defendant. He
said that a diagnosis "of global developmental delay is
highly associated with self-injurious behavior."
cross-examination, Doctor Ihrig admitted that he had never
seen any images of the injuries inflicted on the victim and
could not make a diagnosis of the cause of those injuries. He
conceded that he did not interview any witnesses. Doctor
Ihrig also admitted that the victim was not ever fully
assessed for a developmental delay and that "[w]hat was
done was superficial." Doctor Ihrig acknowledged that
Doctor Elliot had also given the victim a provisional
diagnosis of Oppositional Defiant Disorder, but Doctor Ihrig
chose not to include that diagnosis in his report because it
was his opinion that such a diagnosis was "completely
inappropriate" for a child of the victim's age.
Doctor Ihrig testified that inflicting corporal punishment on
a child with a developmental issue "would exacerbate the
symptoms that the child manifests," causing
"[i]ncreased aggression, more tearfulness, slowed
development, . . . lack of responsiveness to the environment.
It would be pretty damaging."
rebuttal, the State offered into evidence a single
nurse's report that was included in the victim's
medical records from VUMC. The document indicated that the
victim's frenulum was torn when he arrived at the
upon this proof, the jury convicted the defendant of one
count of facilitation of aggravated child abuse, three counts
of aggravated child abuse, one count of aggravated child
neglect, one count of facilitation of felony murder in the
perpetration of aggravated child abuse, and one count of
felony murder in the perpetration of aggravated child
neglect. The jury found the defendant not guilty of two
counts of aggravated child abuse. ...