IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION FILED July 14, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9707-CR-00246 Appellee, ) ) Shelby County V. ) ) Honorable Chris Craft, Judge JOHN ADAMS and ) RITA ADAMS, ) (Aggravated Child Abuse) ) Appellants. )
FOR THE APPELLANT: FOR THE APPELLEE:
John Adams John Knox Walkup Michael E. Scholl Attorney General & Reporter Attorney at Law 200 Jefferson Avenue, Suite 202 Peter M. Coughlan Memphis, TN 3803 Assistant Attorney General 425 Fifth Avenue North Rita Adams 2d Floor, Cordell Hull Building A C Wharton, Jr. Nashville, TN 37243-0493 Shelby County Public Defender William L. Gibbons Walker Gwinn District Attorney General Assistant Public Defender 201 Poplar Avenue, Suite 201 Amy P. Weirich Memphis, TN 38103 Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS, Judge
OPINION The appellants, John and Rita Adams, were convicted by a jury of
aggravated child abuse through neglect in the Shelby County Criminal Court.
Rita Adams was also convicted of assault. The appellants were sentenced to
twenty years in the Department of Correction. They have appealed. We affirm
all convictions and sentences.
The victim, Dillon Adams, was born on November 28, 1994. His mother,
Rita Adams, was addicted to codeine. She took methadone daily to treat her
addiction. She took methadone during her pregnancy. At birth, Dillon suffered
from respiratory distress syndrome. He stayed in the hospital several days so
that the fluid in his lungs could be cleared. Dillon was born addicted to
methadone. Fortunately, he did not suffer from any side effects except irritability.
On December 5, 1994, Dillon was well, and he went home with the appellants.
On December 24, 1994, John Adams called 911 and reported that Dillon
had stopped breathing. Adams testified that when he fed Dillon, formula came
out of his nose and mouth. He testified that Dillon’s lips were blue and his body
was limp. Adams shook Dillon in an attempt to resuscitate him. He also
administered CPR. Adams testified that he told Rita Adams to call 911, but she
refused, saying she could not handle it. Paramedics transported Dillon to
LeBonheur Children’s Medical Center where he was placed on life support.
Dillon was listed in extremely critical condition. A ventilator was inserted in his
windpipe to assist in respiration. Tests revealed that Dillon had multiple severe
injuries that had been left untreated. The baby was less than a month old when
the injuries occurred.
Dillon was primarily treated by three physicians, all of whom testified at
trial. Dr. Thomas Boulden, a pediatric radiologist, testified that Dillon’s CAT
-2- scans showed two distinct injuries. Dr. Boulden testified that Dillon had a
fractured skull caused by a direct blow. Dr. Boulden testified that Dillon also had
brain damage. There was bleeding and swelling in the front and back of Dillon’s
brain. Part of his brain had actually dissolved. Dr. Boulden testified that Dillon’s
injuries were consistent with “shaken baby syndrome.” The brain damage was
caused by shaking the child such that the brain repeatedly hit the cranial wall.
As a result of the injury, Dillon has a permanent empty space in his skull where
fluid gathers. Flexible tubing known as a subdural shunt was inserted in Dillon’s
skull to drain built-up fluid in his brain. The tubing runs underneath Dillon’s skin
down to the abdominal cavity where it drains. The skull fracture was several
days old. The brain damage was approximately twenty-four hours old.
Dr. Boulden testified that the skull and brain injuries were the result of child
abuse.
Dr. Robert Kaufman, also a pediatric radiologist, testified that Dillon had
nine fractures in addition to his skull and brain injuries. Dr. Kaufman testified
that the shaft to Dillon’s right femur or thigh bone was split apart by considerable
force four to seven days before he was brought to the emergency room. The
same area was re-fractured after it had begun to heal. As a result, Dillon’s right
leg was swollen when he arrived at the hospital. Dillon also had fractures to the
edge and end of the bone. Dr. Kaufman testified that Dillon had fractures at the
end of the left femur, the end of the right tibia, and the end of the left tibia. Dr.
Kaufman explained that the fractures to the end of the bone, metaphyseal
fractures, were indicative of child abuse. He explained that metaphyseal
fractures go across the entire bone and were usually caused by a violent twisting
motion and not a fall. The metaphyseal fractures were approximately two weeks
old. Two of the vertebrae in Dillon’s spine were fractured. Dillon also had a
fracture to his ninth rib which occurred approximately four to five days prior to
arriving at the emergency room. There is evidence in the record that Dillon had
-3- a broken collarbone. Dr. Kaufman testified that the skeletal findings were
entirely consistent with child abuse. He further testified that none of the injuries
were consistent with birth trauma.
Dr. Gregory Stidham, a pediatric care specialist, was Dillon’s critical care
specialist. Dr. Stidham testified that Dillon’s condition was extremely critical
when he arrived at the emergency room. Dillon would have died without the
medical treatment. Dr. Stidham testified that, in addition to Dillon’s other injuries,
he was emaciated, had burn marks on his hand and foot, and was lethargic to
the point of becoming comatose. Dr. Stidham’s opinion was that Dillon had been
intentionally injured. He testified that Dillon’s brain injury was caused by violent
shaking, that the fracture to his thigh could not have happened by accident, and
that the burn on his foot was suggestive of a cigarette burn. Photographs of the
burns and Dillon’s broken leg were admitted into evidence.
Both appellants testified. John Adams testified that he worked during the
day, and Rita was the primary care giver of Dillon. The appellants had a one-
year-old child, and Rita had a fourteen-year-old son who lived with them. John
Adams testified that he asked Rita about Dillon’s physical condition on numerous
occasions, but never received a straight answer. John Adams denied abusing or
neglecting Dillon.
Rita Adams testified that she never abused Dillon. She testified that she
was unaware of most of his injuries. She stated that a week before Dillon went
to the hospital, his right leg was larger than his left leg and was clinched up all
the time. She did not seek medical attention because she assumed that it was a
“lazy leg or whatever.” Despite her daily presence, she denies abusing or
witnessing anyone commit abuse on Dillon. She testified that she thought that
Dillon burned himself on the coffee pot while she was bathing him. She testified
-4- that she thought that Dillon’s foot was burned when John fell asleep and dropped
a cigarette on the baby. Rita further testified that since Dillon cried all the time
she did not think that anything unusual was wrong with him when he cried.
Rita’s brother, John Smith, now takes care of Dillon. He testified that
Dillon still has the shunt in his head and that you can see the tube running down
his neck into his stomach. Dillon’s right eye does not move normally with his left
eye, and, he is mentally slower than other children his age.
The appellants challenge the sufficiency of the evidence. In a sufficiency
of the evidence challenge, the relevant question on appellate review 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 or
crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); T.R.A.P. 13(e); State v. Duncan, 698 S.W.2d 63
(Tenn. 1985).
In Tennessee, great weight is given to the result reached by the jury in a
criminal trial. A jury verdict accredits the testimony of the state's witnesses and
resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405
(Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence
enjoyed at trial with the presumption of guilt on appeal. State v. Grace, 493
S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming the
presumption of guilt. Id. On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
As applicable to this case, aggravated child abuse occurs when a person
commits the offense of child abuse as defined in Tennessee Code Annotated
-5- section 39-15-401 (Supp. 1994) and the act results in serious bodily injury to the
child. Tenn. Code. Ann. § 39-15-402(a)(1) (Supp. 1994). Child abuse occurs
when a person, other than by accidental means, knowingly treats a child in such
a manner as to inflict injury or neglects a child so as to adversely affect the
child’s health and welfare. Tenn. Code Ann. § 39-15-401(a). Serious bodily
injury is bodily injury that involves: (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)(33)
(1991). If the victim of the aggravated child abuse is less than six years of age,
then the offense is a class A felony. Tenn. Code. Ann. § 39-15-402(b).
Rita Adams argues that the evidence of serious bodily injury is insufficient
to sustain her conviction. She argues that the evidence of serious injury is
entirely circumstantial and does not exclude every reasonable cause of injury.
These arguments are without merit. The expert medical evidence of multiple
and severe injuries is absolutely overwhelming. While in jail, Rita wrote several
letters to her brother John Smith. She stated that she was not guilty of abuse,
but maybe neglect. She stated that she knew that she had neglected Dillon.
She stated that Dillon accidentally burned his hand on the stove and that she
should have taken him to the doctor. She stated that Dillon fell out of her bed
onto the “hard” floor a week before Dillon was taken to the hospital. She stated
that John shook Dillon “hard” to get him to breathe on the night that Dillon went
to the hospital. She asked her brother to get John out of jail because he did not
need to be in jail for the things that she had done. She stated that she was guilty
of doing these “crazy” things to Dillon. She stated that she caused this “whole
big tragedy.”
In the letters, Rita Adams stated that she was depressed and lonely
-6- before and after her pregnancy with Dillon. She said that she was not herself
and that she no longer cleaned house or took care of herself. She stated that
something just snapped in her head. She states that she could not handle three
children. She said that she never intentionally hurt Dillon, and that she did not
know that “something bad had happened to Dillon.” She stated that she did not
know about many of his injuries. The evidence is sufficient to sustain Rita
Adams’ conviction for aggravated child abuse.
John Adams argues that the state failed to establish the requisite mens
rea of “knowingly” for the offense of aggravated child abuse. A person commits
a crime knowingly when that person is aware that his or her conduct is
reasonably certain to cause the result. Tenn. Code Ann. § 39-10-302(b) (1989).
John Adams argues that he worked long hours, questioned Rita about Dillon’s
injuries, treated the injuries that he recognized, and was aware of a scheduled
doctor’s visit for Dillon. He further argues that none of the baby’s injuries, except
the burns, were recognizable to a lay person.
Shortly after Dillon was admitted to the hospital, John Adams gave a
statement to the police. The statement was introduced into evidence. John
Adams stated that he knew that Dillon had burns, a bruise to his back, and a
swollen leg. He knew that Dillon was not eating properly and that he slept all
day. He knew that Rita might have been giving the baby “mini-thins.” He knew
that Rita was having trouble caring for Dillon. He knew that Rita would not take
Dillon to the doctor. He knew that something was wrong with Dillon before he
and Rita went to Wal-Mart to shop on the night that Dillon was rushed to the
hospital. John noticed the burn on Dillon’s hand a week before Dillon was
admitted to the hospital. He stated that it looked like Rita had placed a cigarette
between Dillon’s fingers and watched it burn because the burn was so deep. He
stated that the burn was three or four layers deep and would scar Dillon for life.
-7- Apparently, he did not take Dillon to the doctor because Rita was treating it with
antiseptic. He also stated that he noticed a bruise on Dillon’s back and saw
Dillon’s eyes rolling back in his head. John stated that “[e]very time I picked him
up, he’d holler like something was hurting him. I couldn’t touch him to change
him. Every time I would pick up his leg to change him, he would scream like
bloody murder, and Rita would say ‘stick a bottle in his mouth and he will stop
crying.’ But I kept noticing these things wrong with him.” He stated that Rita
would hold Dillon’s tongue down to keep him from crying. The evidence is
sufficient to support the jury’s conviction. John Adams knew that something was
wrong with Dillon, he was capable of taking Dillon to the doctor, he did not do so,
and this neglect resulted in serious injury. Rita Adams was the primary care
giver, but this does not absolve John, as the father of Dillon, from responsibility
for Dillon’s welfare, especially when he knew that Rita would not take the baby to
the doctor.
Rita Adams argues that the crime of aggravated child abuse through
neglect does not exist in Tennessee. She argues that since the aggravated child
abuse statute provides that the “act of abuse” results in serious bodily injury,
aggravated child abuse cannot occur through neglect because neglect is an
omission, not an action. The state contends that this argument ignores the
language of the aggravated child abuse statute which clearly reflects the
legislature’s intent to create the crime of aggravated child abuse through neglect.
The state says the definition of child abuse clearly includes neglect, and the
aggravated child abuse statute incorporates this definition by reference.
When interpreting or construing the meaning of a statute, we must
ascertain and give effect to the intent of the legislature. State v. Chance, 952
S.W.2d 848, 849 (Tenn. Crim. App. 1997). When possible, we look to the
ordinary meaning of the language used. State v. Harris, 953 S.W.2d 701, 704-
-8- 05 (Tenn. Crim. App. 1996). We presume that the legislature does not intend
absurd results. Chance, 952 S.W.2d at 849. We will avoid such a result if the
terms of the statute can be reasonably construed to do so. Id. We conclude that
the legislature fully intended for aggravated child abuse to include child abuse
through neglect that results in serious injury. The language of the statute
supports such an interpretation. We appreciate the appellant’s argument;
however, her interpretation of the statute produces an absurd result. For
example, a parent who pushes his or her baby into a fire would be guilty of
aggravated child abuse. A parent whose child fell into a fire would not be guilty
of aggravated child abuse if the parent let the child burn. This would be absurd.
John Adams argues that the trial court erred in allowing the state to
introduce his statement but omitted that he told the police that he was willing to
take a polygraph test. In Tennessee, “[i]t has long been established that the
results of a polygraph examination are not admissible as evidence in a criminal
prosecution.” State v. Campbell, 904 S.W.2d 608, 624-15 (Tenn. Crim. App.
1995). The fact that an accused either offered to take, took, or refused to take a
polygraph examination cannot be admitted as evidence. Id. at 615. This issue is
without merit.
John Adams also argues that the trial court erred in excluding the
testimony of his former attorney. In his statement to the police, John stated that
he had never shaken the baby. At trial, however, John testified when Dillon
stopped breathing on December 24, he shook the baby in an effort to revive him.
The state made an issue out of John’s failure to include this fact in his statement.
After giving the statement, John Adams told his lawyer that his statement was
not completely correct. Adams wanted his attorney to testify that he, Adams,
had admitted that his statement was not complete. Adams claimed that his
attorney’s testimony fell under the state of mind exception to the hearsay rule.
-9- The state contended and contends on appeal that the statement is inadmissable
hearsay. The trial court found that the state of mind exception did not apply
because John Adam’s statement to his attorney concerned an event that
happened weeks or months after Adams gave his statement to the police. The
court concluded that John’s statement was not relevant to John’s state of mind at
the time he spoke to the authorities. Rulings on the introduction of evidence are
usually within the discretion of the trial judge and will not be reversed except for
an abuse of that discretion. State v. Campbell, 904 S.W.2d 608, 616 (Tenn.
Crim. App. 1995); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).
We find no abuse of discretion. Hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Tenn. R. Evid. 801(c). Rule 803(3) of the Rules
of Evidence establishes the state of mind exception to the hearsay rule. The
exception applies to:
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.
We find no abuse of discretion. John Adams’ statement is a statement of
his belief offered to prove what he believed at the time he talked to his attorney.
It is not a statement that establishes his state of mind at the time he gave a
statement to the authorities.
John Adams argues that the trial court erred in refusing to instruct the jury
on the defense of necessity on the second count of the indictment, aggravated
child abuse through neglect. The defense of necessity requires that the person
reasonably believe the conduct is immediately necessary to avoid imminent
harm and that the desirability and urgency of avoiding the harm clearly outweigh,
-10- according to ordinary standards of reasonableness, the harm sought to be
prevented by the law proscribing the conduct. Tenn. Code Ann. § 39-11-609
(1989). Essentially, the appellant argues that, given his work schedule, he did all
he could for Dillon. However, each morning both John and Rita went to the
methadone clinic. The record establishes that John Adams had many
opportunities to take Dillon to the doctor. The trial court denied the appellant’s
request for the instruction because there was no proof that the appellant
neglected the child to prevent harm to the child or someone else. The judge is
not required to charge the jury on an issue that is not fairly raised by the proof.
State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994). The defense of
necessity with regard to neglect is not raised by the proof. This issue is without
merit.
Both appellants claim that their sentences are excessive. When a
defendant challenges the length, range, or manner of service of his sentence, we
conduct a de novo review on the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d) (1990). Where the trial court fails to follow the statutory guidelines,
however, the presumption of correctness no longer applies and our review is
completely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992). In conducting our review we consider: (1) the evidence received at the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and arguments concerning sentencing alternatives; (4) the characteristics and
nature of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and statutory enhancement factors; (6) any
statement the defendant wishes to make in his or her own behalf about
sentencing; and (7) the defendant's potential for rehabilitation. Tenn. Code Ann.
§ 40-35-210(b) (1990); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
-11- The presumptive sentence shall be the minimum sentence in the range if
no enhancement or mitigating factors exist. Tenn. Code Ann. § 40-35-210(c)
(1990). If enhancement factors exist but there are no mitigating factors, then the
trial court may set the sentence above the minimum in that range but still within
the range. Should both enhancement and mitigating factors exist, the court must
start at the minimum sentence in the range and enhance the sentence within the
range as appropriate for the enhancement factors. The trial judge shall then
reduce the sentence within the range as appropriate for the mitigating factors.
Tenn. Code Ann. § 40-35-210(d), (e) (1990).
In determining Rita Adams’ sentence, the court found four applicable
enhancement factors: 1) she was a leader in the commission of an offense, 2)
the child was particularly vulnerable because he was less than a month old when
the injuries occurred, 3) the victim suffered permanent impairment as a result of
the abuse, and 4) the lack of immediate medical care probably would have
resulted in the death of the victim. Tenn. Code Ann. § 40-35-114 (2)(4)(18) &
(19) (Supp. 1994).
In determining John Adams’ sentence, the court found several applicable
enhancement factors: (1) the appellant has a history of criminal convictions, (2)
the victim was particularly vulnerable because of age, (3) the defendant has a
previous history of unwillingness to comply with the conditions of a sentence
involving release into the community, (4) the victim suffered permanent injury,
and (5) the lack of immediate medical treatment would have probably resulted in
death. Tenn. Code Ann. §§ 40-35-114 (1)(8)(18) & (19) (Supp. 1994).
The appellants argue that the trial court erred in enhancing their
sentences based on vulnerability due to age because age is an element of
aggravated child abuse through neglect. If the victim of child abuse is less than
-12- six years old, then the offense of aggravated child abuse is a class A felony. Our
Supreme Court has held that the vulnerability factor may be applied to enhance
a sentence for an offense of which age is an element. State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993). In Adams, the Court said that the relevant inquiry
is not whether the victim is under a particular age, but “whether the victim was
particularly vulnerable because of age. . . .” Id. at 35 (emphasis in the original).
The Court stated that the vulnerability enhancement factor relates more to the
natural physical and mental limitations of the victim than merely to the victim’s
age. Id. Clearly, the victim in this case was particularly vulnerable because of
his physical and mental limitations. The court found, and the evidence
establishes, that Dillon could not resist the crime, summon help, or testify at a
later date. The one-month-old baby was totally dependant on the appellants for
his care. We find no error with the court’s application of this factor to enhance
the appellants’ sentences.
Rita Adams also argues that she was not the leader in the commission of
an offense because there is no leader to an offense based on inaction. We find
no merit to this contention. Rita was Dillon’s primary care giver. She further
argues that the court should have considered her post-partum depression and
emotional strain as a mitigating circumstance, as well as the fact that she had
never been arrested or convicted of anything. We find no error with the court’s
finding of no mitigating evidence. Rita Adams could have sought medical help
for depression. Furthermore, the court would have been justified in rejecting her
testimony as to depression based on a finding of a lack of credibility. Her lack of
prior convictions is reflected in her Range I, standard offender status.
John Adams argues that the court should not have relied on his
convictions because the convictions are very old. From the record it appears
that John Adams does not have a significant history of criminal convictions, but it
-13- does indicate criminal activity. The other enhancement factors are more than
sufficient to support a twenty-year sentence in this case. John further argues
that there was no evidence that the baby suffered permanent injuries. We
disagree. Dr. Boulden testified that part of Dillon’s brain actually dissolved as a
result of injuries. John Adams also argues that facts relied upon to make the
crime aggravated are the same facts relied upon to find that the appellant treated
the baby with exceptional cruelty. The court did not apply this factor because it
found that it was an element of the offense. John Adams argues that the court
should consider as a mitigating factor that he assisted the police by giving them
a statement. We find no merit to this argument. The appellants’ sentences are
affirmed.
Finally, the appellants argue that the trial court should have required the
state to “elect” which injuries were caused by the appellants’ neglect. In
Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973), the Tennessee Supreme
Court held that it is the duty of the trial judge to require the state, at the close of it
proof-in-chief, to make an election of the particular offense it will rely on for
conviction and to properly instruct the jury so that the verdict of every juror would
be united on the one offense. Burlison involved various allegations of sexual
misconduct. The reasons for requiring election in cases that contain evidence of
numerous instances of unlawful conduct is to enable the defendant to prepare
for and make his defense to the specific charge; to protect him from double
jeopardy by individualization of the issue; and to insure that the jury's verdict may
not be a matter of choice between offenses, some jurors convicting on one
offense and others, another. Id. at 803.
The appellants had sufficient information to prepare their defense and
double jeopardy is not an issue. The appellants’ primary concern is that the
jury’s verdict was not unanimous because the members were not required to
-14- specify which serious injury was caused by the appellants’ neglect. The state
argues, and the trial court found, that an election of offenses was unnecessary
because the offense is one continuous period of neglect. We agree. Indeed, if
the state had indicted the appellants on thirteen counts of aggravated child
abuse through neglect based on the injuries in this case, the appellants would
most likely be arguing that neglect was one continuous offense.
The judgments of the trial court are affirmed in all respects.
________________________ PAUL G. SUMMERS, Judge
CONCUR:
_________________________ JOHN H. PEAY, Judge
_________________________ THOMAS T. W OODALL, Judge
-15-