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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs June 19, 2002 STATE OF TENNESSEE v. MICHAEL SHANE POWELL
Appeal from the Criminal Court for Hamilton County Nos. 226355 & 226437 Stephen M. Bevil, Judge

No. E2001-01544-CCA-R3-CD July 9, 2002 The Defendant, Michael Shane Powell, was convicted by a jury of first degree felony murder by aggravated child abuse, and aggravated child abuse. The trial court subsequently sentenced the Defendant to life imprisonment for the murder, and to a concurrent term of twenty years for the aggravated child abuse. In this direct appeal, the Defendant challenges the sufficiency of the evidence; the admission of proof of a prior alleged instance of child abuse; and the constitutionality of his dual convictions for felony murder by aggravated child abuse, and aggravated child abuse. We affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court Affirmed DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA MCGEE OGLE, J., joined. Lee Davis, Chattanooga, Tennessee, for the appellant, Michael Shane Powell. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Bill Cox, District Attorney General; and Barry Steelman and Christopher Poole, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION On the night of January 8, 1999, the Defendant was home with his girlfriend, the victim's mother, and the victim, three-month-old Trevor Chase Holland. The baby was asleep in his carseat; the baby's mother was also asleep. When Trevor began crying, the Defendant removed him from his carseat and took him into the bedroom. The Defendant testified at trial about what next occurred: Anyway, he began to scream and I went into the bedroom, I tried to suffice him. I tried to give him a bottle, tried to comfort him. Nothing worked. He kept screaming. He kept screaming. And there was some napkins laying on a cabinet that I had in the bedroom and I picked one of them up and I wadded it up and that's when I put it in

his mouth, just to try to quieten him down, because I was just so frustrated with him for the last two nights not having any sleep. And I put the paper in his mouth. Never, never intentionally meaning to harm the child. At that point, the Defendant testified, the baby stopped crying. The Defendant then tried to remove the paper, but "couldn't pull it out because [he] had pushed it in too far." He kept trying to scoop the paper out with his finger, he testified, but was unable to remove it. He then tried using the earpiece of a pair of sunglasses to remove the wad of paper. Unsuccessful, the Defendant called 911. Upon reaching the 911 dispatcher, the Defendant stated, "Our little baby has got something hung in his throat and he can't breathe." When asked what the baby had in his throat, the Defendant stated, "I have no idea." Later in the call, the Defendant told the dispatcher "it looks like there's paper or something back in the back of his throat." The Defendant never told the dispatcher how the paper came to be in Trevor's throat. Paramedic Ed Griffits was the first responder on the scene. When he arrived, the baby was not breathing and had no pulse. The Defendant made no effort to explain to Mr. Griffits what was obstructing the baby's airway. Mr. Griffits was unsuccessful in his attempt to intubate the baby, explaining that his throat "looked like hamburger meat." Mr. Griffits transported the baby to the hospital, where Dr. Ralph Smith took over Trevor's care. Dr. Smith testified that, by the time the baby arrived in the emergency department, he "had been without oxygen for a significant period of time." Dr. Smith examined the baby's mouth but was unable to see the wad of paper because of its location. Dr. Smith intubated the baby but was unable to revive him. After pronouncing Trevor dead, Dr. Smith performed a "babygram," which is a full-length x-ray of the baby's body. In examining the x-ray, Dr. Smith discovered that Trevor's left femur (thigh bone) was fractured in multiple places. There was also a fracture to the left tibia (shinbone) near the ankle. Dr. Smith's diagnosis of Trevor's injuries included a finding of child abuse. Dr. Marilyn Gay Murr Doyle performed the autopsy on Trevor. She described the cause of death as follows: "This three-month-old, white, male infant died as a result of a foreign body in the esophagus which compressed against the trachea causing suffocation and asphyxiation." Dr. Doyle testified that she removed a wad of paper measuring two and one-quarter inches by one and onequarter inches by five-eighths inch from Trevor's esophagus. She further testified that a normal esophagus in a child of Trevor's size was approximately three-eighths inch by one-eighth inch. The wad of paper was located in the esophagus at a level below the child's Adam's apple, behind his windpipe. Dr. Doyle testified that the wad of paper was so large that it caused the esophagus to rip and rupture. She stated that it was impossible for the child to have gotten the paper that far into his throat by himself, and described the wad as having been "crammed" into the baby's esophagus. In her opinion, Trevor's death resulted from a homicide.

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Dr. Doyle also testified about the broken femur, explaining that, in her opinion, the injury was no more than twenty-four hours old. Dr. Deloris Rissling, a radiologist, testified that the fractures to Trevor's femur and tibia were no more than five days old, and probably less. She stated that there was no way the child could have caused these fractures to himself. She further opined that the fracture to the tibia was "characteristic of child abuse." Detective Tommy Woods took two recorded statements from the Defendant, both of which were admitted at trial. In his first statement, taken several hours after Trevor's death, the Defendant denied having done anything injurious to the child, and speculated that the baby might have picked up some toilet paper that had been scattered by his older brother, and then placed it in his own mouth. After the autopsy, the Defendant explained in his second taped statement that he had used a few squares of toilet paper to wipe off the baby's gums, and that the paper had accidentally gotten into the baby's throat. Detective Woods also testified that the Defendant made another, unrecorded statement to him, in which the Defendant admitted placing toilet paper in Trevor's mouth in order to quiet him. Dr. Steven Frank Dutton testified on behalf of the defense. Although he did not examine Trevor's body, he examined the autopsy report and the related photographs and x-rays. He agreed that Trevor died "because he had a paper napkin that was shoved down his throat," but stated that his findings were consistent with someone forcing something into the baby's mouth and then trying to remove it. In his opinion, the lacerations to the esophagus could have been caused by the earpiece of a pair of sunglasses used in an attempt to retrieve the wad of paper. Dr. Dutton further opined that the fracture to Trevor's femur was eleven to fifteen days old. On cross-examination, Dr. Dutton agreed with the prosecutor that forcing a napkin into Trevor's mouth constituted child abuse. The Defendant first contends that the evidence is not sufficient to support his convictions. Tennessee Rule of Appellate Procedure 13(e) prescribes that "[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt." Evidence is sufficient if, after reviewing 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In its review of the evidence, an appellate court must afford the State "the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom." Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not "re-3-

weigh or re-evaluate the evidence" in the record below. Evans, 838 S.W.2d at 191; see also Buggs, 995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). First degree felony murder is defined as the "killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy." Tenn. Code Ann.

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