FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE July 15, 1999 APRIL 1999 SESSION Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9805-CR-00203 ) vs. ) Davidson County ) SCOTTY EUGENE WALKER, ) Hon. Thomas Shriver, Judge ) (at trial) Appellant. ) Hon. Steve R. Dozier, Judge ) (at motion for new trial and motion for judgment of acquittal)
(Aggravated Child Abuse)
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY A. DeVASHER (on appeal) PAUL G. SUMMERS LAURA C. DYKES (at trial) Attorney General & Reporter JAMES HOLT WALKER (at trial) Asst. District Public Defenders ELIZABETH B. MARNEY 1202 Stahlman Bldg. Assistant Attorney General Nashville, TN 37201 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493
VICTOR S. JOHNSON, III District Attorney General
DIANE LANCE WILLIAM REED Asst. District Attorneys General 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE OPINION
The defendant, Scotty Eugene Walker, appeals from the conviction
of aggravated child abuse he received at the conclusion of a jury trial in the
Davidson County Criminal Court. He is presently serving a nineteen year sentence
in the Department of Correction for this Class A felony. In this appeal, Walker
raises several issues for our review:
1. Whether the trial court erred in denying Walker's motion to suppress his statements. 2. Whether the evidence is sufficient to support a finding of Walker's guilt beyond a reasonable doubt. 3. Whether the trial court properly admitted photographs of the victim depicting her injuries. 4. Whether the trial court properly denied Walker's request for a mistrial when an expert witness changed her opinion during the trial regarding aging of the victim's bruising. 5. Whether the trial court properly sentenced Walker. 6. Whether a new trial should have been granted based upon newly discovered evidence of the victim's and her twin's recurrent nightmares between 2:00 and 2:30 a.m.
Having reviewed the record, the briefs of the parties, and the applicable law, we
affirm the judgment of the trial court.
This case arises from a devastating closed-head injury suffered by
Brittany DeSheles, a two-year-old child.1 Brittany and her twin sister Kayla are the
children of Tina Hunt. In March 1995, the children lived with Ms. Hunt and her
roommate, Shannon Hendrix, in a rental duplex. Ms. Hendrix had a toddler son who
lived in the home, as well. The defendant was Ms. Hunt's boyfriend, and Ms.
Hendrix was romantically involved with Jesse Hall.
Around 8:00 to 9:00 p.m. on March 20, 1995, the defendant went to
the Hunt/Hendrix home. When he arrived, Hunt and her children, Hendrix and her
child, and Hall were present. The adults drank beer and took drugs. The defendant
1 The facts are recited in the light most favorable to the state.
2 consumed a quart of beer and Soma, Klonopin and Valium pills.
Eventually, Hendrix and Hall left the home with a friend. They
returned about 10:30 p.m. They found the defendant and Hunt holding the victim
and putting ice on a large knot on the victim's head. This was the only injury visible
on the victim. Hunt talked by telephone to a physician at Vanderbilt Hospital
emergency room about the victim's injury. After the victim fell asleep, the defendant
and Hunt left with Melissa Jones and Mark Johnson. Hunt asked Hendrix to watch
the victim and her twin sister while she was gone.
Around 1:30 or 2:00 a.m., Andy Champion arrived and Hall departed
with him. Hall checked on the victim, and he observed her only injuries were a knot
and a bruise. Hendrix also checked on the victim, who was asleep in Hunt's
bedroom, then locked herself in her bedroom and went to sleep. After Champion
and Hall departed, Hendrix was the only adult left in the home.
The defendant and Hunt returned to the house sometime around 4:00
to 4:45 a.m. Hall returned to the Hunt/Hendrix home around 4:15 to 4:30 a.m.
When he arrived, the defendant was in the bathroom with the water running. Hall
heard the defendant yell for Hunt. He saw the defendant cross the hall with the
victim in his arms, and he heard Hunt begin screaming. He then saw Hunt holding
the victim, who had a badly bruised face, a cut on her chin and difficulty crying. Hall
called Mark Johnson's home to have someone come to take the victim to the doctor.
When he returned to the area of the home where the defendant and Hunt had the
victim, he observed thick, dark blood coming from the victim's nose. Hall then called
9-1-1.
Michael Cayll, a paramedic, received a call at 4:45 a.m. to respond to
3 the Hunt/Hendrix home. He arrived at the residence at 4:47 a.m. Firefighters were
already administering oxygen to the victim, who was having seizures. The victim's
physical symptoms were indicative of a serious head injury. Cayll recalled a male
and a female present on the scene whose demeanor did not correspond with the
gravity of the situation.
Around 5:00 a.m., Hendrix was awakened by Hall and a police officer
beating on her bedroom door. Hendrix had been asleep in her room since Hall's
departure from the home several hours earlier.
The defendant was taken to the criminal justice center, where he was
questioned. The then-eighteen-year-old defendant, who dropped out of school in
the tenth grade and who had not slept all night, waived his Miranda rights. He was
interviewed off and on over the course of the next several hours. At first, the
defendant claimed the victim had fallen out of his arms while he was rearranging her
bed covers and hit her head on a bed rail and the floor. He claimed this occurred
earlier in the evening before he, Hunt and Jones left the house. Later, he admitted
that he became frustrated with the victim's fighting, biting, scratching and screaming
while he was trying to get her to sleep. The defendant said he hit the victim on the
back of the head. He said he hit her "a couple of times" but later that it was "only
once." The defendant's admission that he hit the victim came after an exchange in
the interview in which he indicated his desire to take the blame for the victim's
injuries so that the Department of Human Services would not remove the victim and
her twin from Tina Hunt's custody. When the defendant was confronted with
information that medical personnel had opined the victim's head injury was caused
by greater trauma than that he had described, he denied shaking the victim and said
he had hit her only once with his fist. Throughout his statement, he denied
knowledge of a cut on the victim's chin.
4 Doctor Rachel Mace examined the victim at Vanderbilt Hospital on
March 21, 1995. The victim had extensive facial bruising, a fresh cut on her chin
and a head injury. The victim was in a coma and having seizures. She had
significant brain swelling, bleeding inside the head, and a skull fracture. Her injuries
were life threatening, and the victim probably would have died without medical
intervention. Doctor Mace opined that the victim most likely would have begun
having seizures or become unconscious immediately upon receiving such a severe
injury. The victim also had retinal hemorrhages, which were consistent with shaken
baby syndrome. Doctor Mace opined that the victim's injuries were not accidental
in nature and had been inflicted by severe trauma. Further, according to Dr. Mace
the victim's injuries were the result of more than one impact. Doctor Mace opined
that the victim had been a victim of child abuse.
Doctor Leonard Steinberg, the victim's pediatrician from February
1994 until June 1996, and Vickie Allen, the victim's great aunt, testified about the
effect of the injuries on the victim and the extent of her disability.
The trial court submitted count one, aggravated child abuse, based
upon the head injury and intercranial bleeding, and count two, assault, based upon
bruises to the left side of the head and the forehead,2 to the jury. The jury found the
defendant guilty of aggravated child abuse on count one and not guilty of assault
on count two.
2 The trial court partially granted the defendant's motion for judgment of acquittal on count two. The court ruled that the state failed to prove aggravated child abuse, child abuse, aggravated assault or reckless aggravated assault with respect to the injury that formed the basis of count two. However, the court found that the state had presented evidence from which the jury could find the defendant guilty of assault and allowed the jury to receive the question of assault on count two.
5 Against this factual backdrop, the defendant has filed this appeal.
I
In his first issue, Walker alleges the trial court erred in denying his
motion to suppress the statements he gave to law enforcement officials on March
21, 1995. Specifically, Walker claims his statements were involuntarily made
because they "were the product of Detective Meek's threat to him that Tina Hunt
would lose custody of her children unless the defendant provided Meek with an
explanation consistent with the victim's injuries."
A trial court's determination that a confession has been freely and
voluntarily given is not subject to reversal on appeal unless the evidence
preponderates to the contrary. See State v. Odom, 928 S.W.2d 18, 23-24 (Tenn.
1996). Thus, the credibility of witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are within the province of the trial court as the
trier of fact. See id. On appeal, the appellant must shoulder the burden of
demonstrating that the evidence preponderates against the trial court's findings.
State v. Kevin Tate, No. 02C01-9605-CR-00164, slip op. at 16 (Tenn. Crim. App.,
Jackson, Dec. 3, 1997) (citation omitted), perm app. denied (Tenn. 1998).
The defendant was interviewed at the criminal justice center over the
course of several hours on March 21, 1995. The first interview commenced at
approximately 7:00 a.m. The last interview ceased around 1:00 or 2:00 p.m., at
which time the defendant was arrested and booked into the jail. There were three
interviews, which totaled approximately one and one-half hours' time. Initially, the
defendant persisted in explaining the victim's injuries as the result of an accidental
fall. Later, he acknowledged that his previous representations had been false and
explained he had lied in order to keep the Department of Human Services from
6 removing the victim and her sister from Tina Hunt's custody. On multiple occasions,
he expressed his concern that Hunt would lose custody of her children. During the
second interview, Walker asked the detective what was going to happen. The
detective responded,
More than likely you're going to get arrested for aggravated child abuse . . . if she lives. If she dies, you're looking at murder charges. . . . And if you don't tell me the whole truth, the kids are going to be taken away from Tina. If you tell me the whole truth, she may even be able to keep the children.
Almost immediately thereafter, the defendant responded, "Well just f--- it. I'll take
the blame . . . all of it. Lock me up for the rest of my f------ life." The detective
maintained he just wanted the truth and reminded Walker that the victim was near
death. Walker responded, "I know, but I did not do that! The death . . . the death
. . . the near death could be caused from where she hit her head on the bed not
from where somebody hit her or beat her up." The interview continued with Walker
detailing his having hit the victim and Hunt's lack of knowledge of his actions.
Shortly before the second interview terminated, the detective said, "Now, I just want
to make it clear, I haven't forced you to say this?" Walker responded, "No, you
haven't. You've been real nice and I appreciate it." In the third and final interview,
there was no mention of the possibility that Hunt might lose custody of her children.
The record on appeal does not contain a transcription of the trial
court's findings on the motion to suppress. Rather, the record reflects only that the
motion was denied. This court is reluctant to place a trial court in error where the
party seeking relief has failed to provide us with a record that reflects the trial court's
basis for its ruling. See Tenn. R. App. P. 24(b) (appellant's duty to provide a record
that conveys a fair, accurate and complete account of what transpired in the trial
court with respect to the issues on appeal). In any event, despite the deficiency, the
facts of the case do not demonstrate a basis for disturbing the trial court's ruling.
7 The defendant argues that his confession should be suppressed as
involuntary because he would have said anything, including making inculpatory
admissions, in order to keep DHS from removing Tina Hunt's children from her
custody. He relies upon Lymumn v. Illinois, 372 S.W.2d 528, 83 S. Ct. 917 (1963),
in which the Supreme Court held a mother's confession involuntary where she was
threatened with loss of custody of her children and of welfare benefits. We find the
facts of this case distinguishable in degree from those in Lymumn.
In this case, the child custody situation did not involve children with
whom Walker himself had a parental, or even official custodial, relationship. The
detective emphasized to Walker that he wanted him to tell the truth. After Walker's
"I did it" outburst, he and the detective talked in detail about what Walker had
actually done, and Walker denied the most serious injury. When Walker was
specifically asked whether he felt coerced, he indicated he did not and thanked the
detective for being nice. Finally, Walker gave another statement later the same day
in which he did not recant his admission of wrongdoing. Thus, the record provides
a basis for upholding the trial court's denial of the motion to suppress. See State
v. Carolyn Wallen, No. 03C01-9210-CR-00345 (Tenn. Crim. App., Knoxville, July
13, 1993) (mother who was told while she was in custody for two and one-half hours
that her child was with a babysitter, that she could lose custody of her child as the
result of her participation in two aggravated robberies, and who was asked to
cooperate for the welfare of her child did not give involuntary confession).
II
Walker claims his conviction is infirm because the evidence does not
support his guilt beyond a reasonable doubt. Specifically, Walker contends that the
proof does not exclude every reasonable hypothesis other than his guilt because
Shannon Hendrix could have inflicted the victim's head injury during the early
8 morning hours when Hendrix was the only adult present in the home with the
children.
When an accused challenges the sufficiency of the evidence, an
appellate court’s standard of review is whether, after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d
63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
1990).
Moreover, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.
Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d
608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a
criminal offense based upon circumstantial evidence alone, the facts and
circumstances "must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470
S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt
must be woven around the defendant from which he cannot escape and from which
facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;
State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
9 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
In the light most favorable to the state, the evidence supports the guilt
of the defendant and no one else as the perpetrator of the crime. Doctor Mace
opined that given the severity of the victim's skull fracture and internal head injury,
the injuries were sustained within a few hours of the victim's presentation at the
hospital, and the likelihood increased closer in time to presentation as contrasted
with the earlier hours in the evening. The defendant admitted striking the victim,
although he denied more than one or two blows or shaking the victim. Throughout
his statements, he consistently maintained that Tina Hunt had nothing to do with the
victim's injuries. Despite his efforts at trial to cast the shadow of guilt upon Shannon
Hendrix, the state's evidence demonstrated that the victim had no massive injury
when Hendrix went to bed around 1:30 to 2:00 a.m. Hendrix remained locked in
her bedroom asleep for the rest of the night and did not awaken until Hall and a
police officer pounded on her door the following morning.
In finding the evidence sufficient, we have distinguished State v. Hix,
696 S.W.2d 22 (Tenn. Crim. App. 1984), overruled on other grds., State v.
Messamore, 937 S.W.2d 916, 919 n.3 (Tenn. 1996), upon which the defendant
relies. In Hix, the victim's mother and father were both found guilty of child abuse.
10 Id. at 23. This court found the evidence insufficient to support their convictions
where the evidence showed that the child was in the custody of both parents at the
time of his injuries. Id. at 25. Although the parents offered various explanations for
how the victim's injuries could have occurred, they made no significantly inculpatory
statements. Id. In the present case, however, the state's evidence demonstrated
that the defendant inflicted the victim's injuries during the hours in which Shannon
Hendrix was locked in her room asleep. The defendant offered no evidence to the
contrary. Moreover, the defendant admitted harming the victim, although he denied
inflicting the most severe of the injuries. He repeatedly denied that Tina Hunt had
any knowledge of or involvement in the abuse.
Thus, the evidence sufficiently supports the defendant's conviction.
III
Next, the defendant complains of error in the admission of five
photographs of the victim which depict her injuries.
In determining whether photographs should be admitted, the trial court
must determine, first, whether the photograph is relevant. State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978); Tenn. R. Evid. 401. Photographs are not
necessarily rendered inadmissible because they are cumulative of other evidence
or because descriptive words could be used. Collins v. State, 506 S.W.2d 179, 185
(Tenn. Crim. App. 1973); see also State v. Terrence L. Davis, No. 02C01-9512-CR-
00343, slip op. at 14 (Tenn. Crim. App., Jackson, June 2, 1997), perm. app. denied
(Tenn. 1998). Photographs must be relevant to prove some part of the
prosecution's case and must not be admitted solely to inflame the jury and prejudice
them against the jury. Banks, 564 S.W.2d at 951; see Tenn. R. Evid. 403 (relevant
evidence may be admitted if its probative value is not "substantially outweighed by
11 the danger of unfair prejudice"). Prejudice becomes unfair when the primary
purpose of the evidence at issue is to elicit emotions of "bias, sympathy, hatred,
contempt, retribution, or horror." M. Graham, Handbook of Federal Evidence 182-
83 (2d ed. 1986).
On appeal, a trial court's decision to admit a photographic exhibit is
reviewable for abuse of discretion. Id. at 949.
The five photographs in question are of the victim's head and face at
various angles. There is one photograph each of the left and right sides of the
victim's head, the victim's face from above, the victim's face from the left side, and
the victim's face from below. The photographs depict significant bruising in diffuse
areas of the victim's forehead and face, as well as a sutured chin laceration. The
defendant specifically attacks three of the photographs, which depict bruises to the
right side of the face and the eyes, and the chin cut, because he was not charged
with inflicting these injuries.
The trial court significantly curtailed the quantity of photographic
evidence the state was allowed to introduce. It did not allow the state to use an
overhead projector to display the images to the jury because the projector
"change[d] the colors . . . in an impermissible way." The photographs the court
allowed of the victim's external facial and head injuries were relevant to the victim's
internal skull fracture and intercranial bleeding as charged in count one, as well as
the bruises that were the subject of the second count of the indictment.
Upon review, we find the photographs relevant and lacking danger of
unfair prejudice. Doctor Mace opined that the skull fracture and the intercranial
bleeding had not necessarily resulted from the same blow. Moreover, she opined
12 that the victim's internal head injuries were the result of non-accidental, severe,
inflicted trauma. Doctor Mace testified that the various bruises on the victim's face
and head and the chin cut were indicative that acts of child abuse had been
inflicted, rather than a simple fall or one blow. Although the defendant was not
charged with a separate count for each individual injury, the victim's overall physical
condition was relevant to cast doubt upon his statements that the victim had fallen
and he had hit her only one or two times. We believe the photographs were
properly received for this purpose.
Alternatively, the defendant argues that even if probative, the
photographs were too prejudicial to be admitted. We acknowledge that the five
challenged photographs are disturbing in that they depict a badly injured young child
attached to medical tubes and wires. However, they are not gruesome or so
graphic that they should have been excluded. Unlike the photographs of which this
court disapproved in the cases cited by the defendant, the photographs in the case
at bar were not autopsy photographs. See State v. Collins, 986 S.W.2d 13, 19-22
(Tenn. Crim. App.) (photographs of newborn baby taken at autopsy were
erroneously admitted because of inherent prejudice and lack of probative value to
facts in issue), perm. app. denied (Tenn. 1998); State v. Cynthia Roberson, No.
02C01-9503-CC-00059 (Tenn. Crim. App., Jackson, Dec. 28, 1995) (five
photographs showing child abuse victim's injuries were properly admitted but one
autopsy photograph depicting victim's head after dissection and exposure of internal
features improperly admitted) (Summers, J., dissenting); Gladson v. State, 577
S.W.2d 686 (Tenn. Crim. App. 1978) (autopsy photos showing decedent's cranial
bone and brain). Moreover, it is noteworthy that the defendant was charged in
count two with assault based upon the bruises on the left side of the victim's face.
Despite receiving the photographs of these bruises, the jury chose to acquit the
defendant on that count. This tends to indicate that the jury did not misuse or
13 otherwise become inflamed by these photographs.
We find no abuse of discretion in the admission of the photographs.
IV
Walker also alleges that the trial court erred in denying his motion for
a mistrial. Prior to trial, the defense interviewed Dr. Rachel Mace, a pediatrician
who examined the victim during her hospitalization and determined that her injuries
were the result of non-accidental child abuse. During pretrial interviews with the
defense, Dr. Mace indicated that the victim had bruises of various ages on her body.
Based upon this information, the defense apparently planned to cast doubt upon the
state’s theory that the defendant inflicted the charged injuries on the victim by
showing that he was not present in the victim’s home when earlier injuries had been
inflicted.
After the state had commenced its case-in-chief, the court held a jury-
out hearing regarding the admissibility of photographs at which Dr. Mace testified.
During this testimony, she testified that she was unable to give opinions regarding
the ages of the victim’s various bruises. Doctor Mace said she had changed her
mind that morning about the accuracy of gauging the age of bruises by color after
reading an article in the journal Pediatrics. The defense registered a vociferous
objection and asked the court to declare a mistrial. After an ex parte, in-chambers,
and off-the-record hearing was conducted with the defense and over the objection
of the state, the court declined to grant a mistrial. However, the court adjourned
court for the day so that the defense would have time to prepare for cross-
examination of Dr. Mace. The court acknowledged “a fairly serious discovery
problem” and indicated its willingness to give the defense as much time as it needed
to prepare. When defense counsel was specifically asked when she would like to
14 return, she indicated she would be ready to proceed at 10:30 the following morning.
When court resumed the following morning, the defense did not indicate a lack of
preparedness or ability to proceed.
The entry of a mistrial is appropriate when the trial cannot continue for
some reason, or if the trial does continue, a miscarriage of justice will occur. State
v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). The decision to
grant a mistrial is within the sound discretion of the trial court, and this court will not
disturb the trial court's determination unless a clear abuse of discretion appears on
the record. Id.
On appeal, Walker claims that he was forced by this change of opinion
to defend against a theory of the case that had not been advanced by the state prior
to Dr. Mace taking the stand. Further, he claims the denial of a mistrial made it
impossible for him to obtain an expert witness. Finally, he cites to the caselaw of
this court and the Tennessee Supreme Court which condemns “trial by ambush.”
The weakness in Walker’s argument is that the trial court indicated its
willingness to provide the defense with as much time as it needed to prepare, rather
than granting a mistrial. In the wake of the denial of the motion for mistrial, the
defense indicated it could be prepared the following morning and registered no
request for additional time when court reconvened. The defense did not indicate
to the trial court that it needed more time to obtain an expert witness. It appears
from the record that the trial court would have been as accommodating of the
defense as the situation warranted. We fail to see how the procedure followed in
lieu of the grant of a mistrial resulted in a miscarriage of justice to the defendant’s
detriment. See id. As such, we see no abuse of discretion in the trial court’s denial
of the motion for mistrial.
15 V
The defendant's next issue is whether he received an excessive
sentence. When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review of the record with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. §40-35-401(d) (1997). This presumption is “conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is
upon the appellant.” Id. In the event the record fails to demonstrate the required
consideration by the trial court, review of the sentence is purely de novo. Id. If
appellate review reflects the trial court properly considered all relevant factors and
its findings of fact are adequately supported by the record, this court must affirm the
sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing,
(2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct
involved, (5) evidence and information offered by the parties on the enhancement
and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35-
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
16 The defendant's first specific complaint about the length of his
sentence is that the trial court did not apply as a mitigating factor the defendant's
lack of a prior criminal record. This court has, indeed, held that this is a proper
mitigating factor under Code section 40-35-113(13). See, e.g., State v. Bingham,
910 S.W.2d 448, 453 (Tenn. Crim. App. 1995). In the present case, however, the
defendant had a history of illicit drug use and underage alcohol consumption. We
see no error in the trial court's failure to reward him with a mitigating factor because
he was fortunate or surreptitious enough to avoid prosecution for his illegal activity.
See State v. Williams, 920 S.W.2d 247, 261 (Tenn. Crim. App. 1995) (trial court
may, but is not required to, consider lack of prior criminal record as a mitigating
factor).
The defendant also complains about the trial court's enhancement of
the defendant's sentence by two years for each enhancement factor and reduction
by one year for each mitigating factor. In State v. Boggs, 932 S.W.2d 467 (Tenn
Crim. App. 1996), this court observed
The appellant's sentence is not determined by the mathematical process of adding the sum total of enhancing factors present then subtracting from this figure the mitigating factors present for a net number of years. Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. . . . 'The Legislature has provided for only ranges within which a determinate sentence will be imposed and has not chosen to assign any controlling value to these mitigating and enhancement factors in how they are weighed in determining where within the appropriate range a particular defendant's sentence should fall.'
Id. at 475-76 (quoting State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986)) (other
citations omitted). Neither Boggs, Moss, nor any other authority cited by the
defendant stands for the proposition that a trial court may not assign specific values
to enhancement and mitigating factors based upon the facts of the case. See Tenn.
Code Ann. § 40-35-210, Sentencing Comm'n Comments (1997). Upon a complete
17 review of the sentencing proceedings, it is apparent that the trial court proceeded
according to the principles and within the guidelines of the sentencing law.
We find no merit in the sentencing issues raised by the defendant.
VI
Finally, Walker alleges he should have been granted a new trial based
upon newly discovered evidence. At the motion for new trial, the court received
evidence that the victim and her sister experienced recurrent nightmares between
2:00 and 2:30 a.m. Walker alleges this information casts doubt on his conviction
because the nightmares may be indicative of the time of night Brittany was abused.
By all accounts, the only adult present in the Hunt/Hendrix home at 2:00 or 2:30
a.m. on March 21, 1995 was Shannon Hendrix.
It is within the trial court's discretion to grant a motion for new trial on
the basis of newly discovered evidence. State v. Goswick, 656 S.W.2d 355, 358
(Tenn. 1983). In order to prevail on such a motion, the defendant must demonstrate
reasonable diligence, materiality and likelihood of a different result if the evidence
is produced and accepted by the jury. Id. at 358-59.
The weakness in the defendant’s argument is that he failed to carry
his burden of proof at the motion for new trial. Although there is evidence of the
victim's and her sister's nightmares in the record, the defendant has failed to
establish the relevance of this evidence to a defense that Hendrix committed the
crime.
That the victim’s and her sister’s nightmares have any relevance to the
time of the victim’s injuries can be no more than conjecture without some evidence
18 linking the nightmares to the time of the injuries. The defense proof at the motion
for new trial was notably absent of any expert testimony that children may have
sleep disturbances at the same time of night when they have suffered or witnessed
a traumatic event. There was no showing of materiality of this evidence or the
likelihood of a different result. Thus, there was no error in denying the defendant
a new trial.
In sum, we find no error of law requiring reversal. The judgment of the
trial court is affirmed.
________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________ JOHN H. PEAY, JUDGE
_______________________________ DAVID H. WELLES, JUDGE