        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                       May 12, 2015 Session

             STATE OF TENNESSEE v. DONALD W. HIGGINS III

                  Appeal from the Criminal Court for Davidson County
                       No. 2011-D-2978     Seth Norman, Judge


                   No. M2014-01171-CCA-R3-CD – Filed July 27, 2015


The defendant, Donald W. Higgins III, appeals his Davidson County Criminal Court jury
conviction of aggravated child neglect, claiming that the evidence is insufficient to
support his conviction, that the trial court erred by admitting photographs of the victim‟s
injuries, that the trial court erred by refusing to play at trial a portion of his recorded
pretrial interview with the police, that the trial court erred by refusing to instruct the jury
that a violation of the duty to report was a lesser included offense of aggravated child
neglect, and by imposing a Range II sentence. Because the evidence adduced at trial was
insufficient to support the defendant‟s conviction of aggravated child neglect, that
conviction is reversed, and the charge is dismissed.

    Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Dismissed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Richard Strong (on appeal); and Kelly Young and Holly Troutman (at trial), Nashville,
Tennessee for the appellant, Donald W. Higgins III.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Brian Holmgren,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

             A Davidson County Criminal Court jury convicted the defendant of one
count of aggravated child neglect for allegedly aiding in Suzanne Wiley‟s neglect of her
daughter, M.D.1

1
       As is the policy of this court, we refer to the minor victim by her initials.
              Doctor Deborah Lowen, a pediatrician at Vanderbilt Children‟s Hospital
who was also a specialist in child abuse injuries, testified that she examined M.D. on
August 3, 2011, following M.D.‟s August 2, 2011 hospital admission. At that time, the
victim‟s mother informed Doctor Lowen that she first observed burns on the victim‟s
body on July 29, 2011. The victim‟s mother said that she put ointment and gauze onto
the victim‟s blistered and peeling skin and that she gave the victim Tylenol for the pain.

               Doctor Lowen explained that the victim suffered second- and third-degree
burns to “between 20 and 30 percent of her body surface area from the buttocks down
involving both legs and the genital area.” At the time Doctor Lowen examined the
victim, “[t]he skin was off and peeling.” She said that when the injury was fresh, the skin
would have blistered and that “[o]ver time the areas that were blistered will then pop and
that skin will come off also.” She testified that burns such as those suffered by the victim
“will leak a lot of fluid,” leading to dehydration. The victim was dehydrated when she
arrived at the hospital.

              Doctor Lowen testified that, had the victim been brought to the hospital
immediately after the injuries, she would have been treated with pain medication and
provided a lot of intravenous fluids to ward off dehydration. She said that the victim‟s
injuries would have been treated with sterile ointments and wrapped in sterile gauze that
would have been changed on a set schedule.

             Doctor Lowen said that the victim‟s wounds “needed to be cleaned
extensively because they hadn‟t been” and that she required skin grafting to the deepest
part of the wounds. She testified that the victim had undergone “a dozen surgical
procedures” between the time of her initial hospitalization and the February 2014 trial
and that she would require more procedures as she grew in order to minimize scarring
and allow her to have a full range of motion in her ankles.

              According to Doctor Lowen, proper care for the victim‟s wounds could not
occur outside of a hospital setting. She opined that the delay in medical care increased
the victim‟s scarring “[b]ecause the skin had a chance to start redeveloping, re-growing,
in a non-healthy way.” She added, “By the time she came in for medical care it was to[o]
late to intervene in that process and to get it growing the correct way, and the burn
surgeon is very clear about that also.”

               During cross-examination, Doctor Lowen clarified that she did not actually
treat the victim but instead acted as “a consultant” in the victim‟s case. Doctor Lowen
stated that the victim‟s mother told her that the victim had been burned when the victim
turned on the hot water in the bathtub. She said that the victim‟s injuries were not
                                            -2-
consistent with the victim‟s having brief exposure to hot water running from the faucet
but were consistent with the victim‟s having been “[p]laced into a tub of hot water.”
Doctor Lowen agreed that third-degree burns are not actually painful because burns that
severe actually destroy the nerve endings. The second-degree burns, she said, would
have been very painful. She said that the victim would likely have manifested that pain
by crying, becoming lethargic, and not eating as much. Those signs of distress should
have been obvious to the victim‟s mother. Doctor Lowen said that she had no contact
with the defendant and had never even heard his name until she got the subpoena to
testify in this case.

              Carey King, the victim‟s maternal grandfather, testified that he spoke to the
victim‟s mother on August 2, 2011, and learned that the victim had been burned. Mr.
King asked the victim‟s mother to bring the victim to his store, where he was working on
that day, so that he could examine the victim. When they arrived, the victim‟s mother
was carrying the victim, who was “wrapped in a towel and she was very lethargic, very
pale in color.” When he opened the blanket to look at the injuries, he “was shocked,
horrified, and taken aback at the extent of the injury.” He recalled that the victim was
wearing a shirt and a diaper and that her legs were wrapped in gauze. He said that he
asked Ms. Wiley why she had not taken the victim to the hospital. He then telephoned
his wife and Vanderbilt Children‟s Hospital. His wife drove the victim and the victim‟s
mother to the hospital while Mr. King stayed behind to lock up his store.

                Mr. King testified that the victim‟s mother “told so many stories” about
how the victim received her injuries “that we can‟t even get them back right now.” He
said that, as far as he knew, no version provided by the victim‟s mother was the truth. He
acknowledged that the victim‟s mother was resistant to taking the victim for treatment
and that he “told her she needed to bring [the victim] out” so that he could examine the
wounds. He explained that he “was in Special Forces and . . . was trained in
understanding wounds, so [he] would have been able to tell her what she needed to do.”
Mr. King said that he had never met or heard of the defendant.

               Lorelei King, the victim‟s maternal grandmother, testified that she
telephoned the victim‟s mother on August 2, 2011, because she had been unable to get in
touch with her the day before. Ms. King said that her daughter had not previously
indicated that she had been staying with relatives of her boyfriend. She stated that she
did not even know that the victim‟s mother had become involved with a man named
Jarico Huey. Ms. King recalled that when she told the victim‟s mother that she sensed
that something was wrong, the victim‟s mother began to cry. After some “probing,” the
victim‟s mother told Ms. King that the victim had been burned. Ms. King said that she
told the victim‟s mother to telephone Mr. King, explaining, “I knew that he would be able
to extract the information from her and figure out what was wrong.”
                                            -3-
               Ms. King testified that her husband telephoned her a few minutes later and
told her to come to their store. When she arrived, Mr. King brought the victim out to her
car “wrapped back up in a blanket, put her in a car seat, and told [Ms. King] to take her
directly to the hospital.” Ms. King recalled that the victim “was bleeding, she was wet,
weeping, and black like charred.” She said that the victim asked for a drink “because she
was thirsty” and that when she handed the victim a bottle of water, the victim “kept
drinking and drinking.”

             Ms. King testified that prior to her telephone call with the victim‟s mother
on August 2, 2011, she had no knowledge of any injury to the victim. She said that she
and her husband, not the victim‟s mother, insisted that the victim be taken to the hospital.

             Ms. King said that since the victim‟s initial hospitalization, the victim had
undergone “about 18” different surgeries and procedures, all of which had required
general anesthesia. Only two of those procedures involved skin grafts, both of which
occurred during the initial hospitalization. She said that one of the skin grafts was
designed to save the victim‟s left foot, which the doctor had indicated might require
amputation.

               During cross-examination, Ms. King said that she spoke with the victim‟s
mother approximately three times between the Friday when the victim received her
injuries and the Tuesday when she discovered that the victim had been injured. She said
that the victim‟s mother never indicated that the victim had suffered any injury. Ms.
King also spoke to the victim, who was 18 months old at the time, and that the victim
cried and asked to come to Ms. King‟s house. Ms. King said that it was not unusual for
the victim to cry to come to her house. Ms. King said that the victim‟s mother told her
that the victim had been in her care during the entire time following her injury. The
victim‟s mother told Ms. King that she did not take the victim to the hospital because she
was “[s]cared they were going to take her baby away.”

              Metropolitan Nashville Police Department (“Metro”) Detective Michael
Dale Clark testified that he investigated the victim‟s injuries. As part of that
investigation, he asked the mother to provide a reenactment of the circumstances
surrounding the injuries. The reenactment took place at a residence on Coventry Way.
While at the residence, Detective Clark examined the water heater and determined that it
was set to a temperature of “approximately 140 to 145.” He tested the faucet on the
bathtub and determined that the peak temperature of the water coming from that faucet
was 145 degrees and that the faucet reached that temperature after approximately 15
seconds.

                                            -4-
               Metro Detective John Grubbs testified that he spoke with Doctor Lowen on
August 3, 2011, and then interviewed Ms. King and the victim‟s mother. At that time,
the victim‟s mother did not suggest that anyone else had been involved in the victim‟s
injuries. During a follow-up interview on August 18, 2011, Detective Grubbs learned
that the victim‟s mother was at work when the victim received her injuries. At that point,
he conducted another interview of the victim‟s mother, and she told him that the victim
had been with her boyfriend, Jarico Huey, when she was injured. Mr. Huey admitted
during an interview with Detective Grubbs that he had caused the burns by placing the
victim into scalding water.

              During that second interview, the victim‟s mother also indicated that she
and Mr. Huey “took [the victim] to another address where they remained for a period of
four to five days.” That other address was the residence where Mr. Huey lived with his
family. Detective Grubbs later learned through interviews with Mr. Huey‟s family
members that Mr. Huey‟s grandmother, mother, and the defendant, who is Mr. Huey‟s
brother, along with the defendant‟s girlfriend, Candace Bennett, had all been present at
the residence at some point while the injured victim was there. Detective Grubbs said
that the defendant lived at that residence, which was owned by his grandmother, but he
could not say with any certainty how often the defendant had been in the residence during
the relevant period. Detective Grubbs testified that none of those individuals made any
attempt to report the victim‟s injuries to the police or to the Department of Children‟s
Services.

              Detective Grubbs interviewed the defendant, and an audio recording of a
portion of that interview was played for the jury.

              During cross-examination, Detective Grubbs acknowledged that friends of
the victim‟s mother initially colluded with the victim‟s mother to conceal the fact that the
victim was in Mr. Huey‟s care when she received her injuries. When the victim‟s mother
finally acknowledged that she had been untruthful about the source of the victim‟s
injuries, she did not indicate that the defendant had been present when the victim was
injured. The defendant is not related to the victim or the victim‟s mother, and he was not
present at the Coventry Way address when the injury occurred. That address was the
residence of the victim and her mother. The defendant had never resided at that address.
The detective‟s investigation revealed only that the defendant and Ms. Bennett had seen
the victim‟s injuries once while the victim and her mother were at the defendant‟s
grandmother‟s house and that, after seeing the injuries, the defendant and Ms. Bennett
then went to the store to purchase supplies to treat the injuries. The detective
acknowledged that no evidence existed to show that the defendant had seen the victim
more than one time after her injury.

                                            -5-
               At the conclusion of Detective Grubbs‟s testimony, the State rested.
Following a full Momon colloquy, the defendant elected not to testify and chose to
present no proof. After the jury convicted the defendant of aggravated child neglect, the
trial court imposed a Range II sentence of 28 years‟ incarceration. The defendant filed a
timely but unsuccessful motion for a new trial followed by a timely notice of appeal.

              In this appeal, the defendant challenges the sufficiency of the convicting
evidence, the trial court‟s evidentiary rulings, the trial court‟s failure to provide an
instruction on a violation of the statutory duty to report child abuse as a lesser included
offense of aggravated child neglect, and the sentence imposed by the trial court.

                                       I. Sufficiency

             The defendant first asserts that the evidence was insufficient to support his
conviction because the State failed to establish that the defendant had a legal duty to
protect M.D. The State contends that the evidence showed that the defendant voluntarily
assumed a duty of care with regard to M.D. and that he was criminally responsible for the
victim‟s mother‟s failure to seek medical treatment for the child‟s injuries.

              We review the defendant‟s claim of insufficient evidence mindful that our
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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
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). Significantly, this court must
afford the State 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.
Id.

              Tennessee Code Annotated section 39-15-401(b) provides:

              Any person who knowingly abuses or neglects a child under
              eighteen (18) years of age, so as to adversely affect the
                                             -6-
              child‟s health and welfare, commits a Class A misdemeanor;
              provided, that, if the abused or neglected child is eight (8)
              years of age or less, the penalty is a Class E felony.

T.C.A. § 39-15-401(b). As charged in this case, an act of child neglect is classified as
aggravated child neglect when “[t]he act of . . . neglect . . . results in serious bodily injury
to the child.” Id. § 39-15-402(a)(1).

              The offense of child neglect has three elements: “(1) a person knowingly
must neglect a child; (2) the child‟s age must be within the applicable range set forth in
the statute; and (3) the neglect must adversely affect the child‟s health and welfare.”
State v. Sherman, 266 S.W.3d 395, 404 (Tenn. 2008) (citing State v. Mateyko, 53 S.W.3d
666, 670 (Tenn. 2001); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000)). Discussing
when the failure to act may give rise to criminal culpability under the statute, our
supreme court has held that “[i]n order to establish neglect, the State must first prove that
a defendant owes a legal duty to the child.” Sherman, 266 S.W.3d at 404 (citing
Mateyko, 53 S.W.3d at 671). The court added,

              In order to be found guilty of a criminal omission, one must
              have knowledge of the circumstances that give rise to the
              duty. Moreover, our child neglect statute contemplates that
              the conduct constituting the offense be made knowingly. A
              defendant‟s duty to act must arise from a legal duty; a mere
              moral obligation will not suffice.

Sherman, 266 S.W.3d at 404 (citations omitted). “Ordinarily, the legal duty envisioned
by section 39-15-401(a), along with the knowledge of such a duty, arises from a
relationship with a child victim.” Id. at 405.

              In Sherman, our supreme court concluded that a relationship giving rise to a
legal duty exists, and criminal liability for child neglect may be found, when a person
stands in loco parentis. Id. Whether a person is standing in loco parentis depends upon
the intent of the individual, and a fact-finder may infer that intent from circumstantial
evidence, including “the child‟s age, the child‟s dependence upon the person claimed to
be in loco parentis, and whether that person supports the child and exercises the duties
and obligations of a natural parent.” Id. at 406-07.

              Utilizing these factors, we conclude that the State presented no evidence
that the defendant intended to establish an in loco parentis relationship with the victim.
At all relevant times, the victim remained under the exclusive care and control of her
mother, who expressed resistance to any suggestion of medical treatment for the victim.
                                              -7-
No evidence suggested that the victim was dependent upon the defendant, that the
defendant supported the victim, or that the defendant undertook “the duties and
obligations of a natural parent” with regard to the victim. Indeed, the evidence, in the
light most favorable to the State, established that the defendant‟s brother, Jarico Huey,
burned the victim by submerging her into hot water while at Ms. Wiley‟s residence. At
some point after the victim was burned but before Ms. Wiley spoke to Mr. King and
agreed to get medical treatment for the victim, the defendant and his girlfriend, Candace
Bennett observed at least part of the injuries to the victim‟s leg. The defendant told Ms.
Wiley that she should take the victim to the hospital, but when she refused, the couple
went to the store, where Ms. Bennett procured ointment and gauze to treat the victim‟s
injuries. None of the facts adduced at trial supported a conclusion that the defendant
knowingly neglected M.D.

             The State argues on appeal, as it did in the trial court, that the defendant
was criminally responsible for Ms. Wiley‟s neglect of the victim and thus guilty of
aggravated child neglect.

               “A person is criminally responsible as a party to an offense, if the offense is
committed by the person‟s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” T.C.A. § 39-11-401(a). As is pertinent here,

              A person is criminally responsible for an offense committed
              by the conduct of another, if:

              (2) Acting with intent to promote or assist the commission of
              the offense, or to benefit in the proceeds or results of the
              offense, the person solicits, directs, aids, or attempts to aid
              another person to commit the offense; or

              (3) Having a duty imposed by law or voluntarily undertaken
              to prevent commission of the offense and acting with intent to
              benefit in the proceeds or results of the offense, or to promote
              or assist its commission, the person fails to make a reasonable
              effort to prevent commission of the offense.

Id. § 39-11-402(a)(2)-(3). “To prove guilt through a theory of criminal responsibility, the
State must establish that the defendant „knowingly, voluntarily and with common intent
unite[d] with the principal offender[] in the commission of the crime.‟” Sherman, 266
S.W.3d at 408 (quoting State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994));
see also Dorantes, 331 S.W.3d at 386 (observing that “the evidence must establish that
the defendant in some way knowingly and voluntarily shared in the criminal intent of the
                                             -8-
crime and promoted its commission”). Although “[m]ere presence during the
commission of a crime is insufficient to support a conviction,” the State need not show
that the defendant physically took part in the crime, “encouragement of the principal is
sufficient.” Sherman, 266 S.W.3d at 408.

              The State argues that the defendant, acting out of a motive to protect his
brother from criminal charges, knowingly aided the victim‟s mother in her neglect of the
victim. The evidence clearly established that Ms. Wiley neglected the victim and that the
victim suffered serious bodily injuries that led to a lasting impact on her physical health.
No evidence established, however, that the defendant “knowingly, voluntarily, and with
shared intent” united with Ms. Wiley in the commission of that offense. In the light most
favorable to the State, the evidence showed that the defendant saw the victim only once
after she was burned but before she was taken for medical treatment. Although the State
argues that the defendant could have seen the victim while the victim and her mother
were staying with the defendant‟s relatives, they presented no actual proof that he did.
Additionally, no proof established that the defendant knew that Mr. Huey had caused the
victim‟s injuries, that Mr. Huey had done so other than by accidental means, or that Mr.
Huey would face criminal charges for the injuries. Suggesting that the defendant acted
out of a motive to protect his brother under these circumstances is mere speculation.

               Moreover, the defendant‟s assisting with the procuring of supplies so that
Ms. Bennett could treat the victim‟s injuries does not, in our view, evince that the
defendant shared Ms. Wiley‟s intent to withhold medical treatment from the victim.
Indeed, the treatment facilitated by the defendant was the only medical treatment the
victim received. No proof exists that the defendant actively discouraged Ms. Wiley from
seeking medical treatment for the victim or prevented her from doing so. See Dorantes,
331 S.W.3d at 386-87 (affirming conviction when evidence established that Dorantes
“knowingly and voluntarily shared in the criminal intent of the crime and promoted its
commission” because he “was not willing to allow others to either observe the
seriousness of the victim‟s injuries or ascertain his need for intensive medical
treatment”). Mr. and Ms. King‟s testimony established Ms. Wiley‟s resistance to taking
the victim to the hospital. Finally, we cannot say that the defendant‟s admitted
suggestion to Ms. Wiley that the victim‟s injuries “might not be so bad,” which was
based upon his own experience with having been burned as a child, rises to the level of
active encouragement required for a conviction of being criminally responsible for the
conduct of another. Because the evidence did not establish that the defendant, “[a]cting
with intent to promote or assist” in Ms. Wiley‟s neglect of the victim, aided or attempted
to aid Ms. Wiley in the commission of that offense, we conclude that the evidence was
insufficient to establish that the defendant was criminally responsible for Ms. Wiley‟s
neglect of the victim under the terms of Code section 39-11-402(a)(2).

                                            -9-
               We also conclude that the evidence was insufficient to establish that the
defendant was criminally responsible for the neglect of the victim under the terms of
Code section 39-11-402(a)(3). “Subdivision (3) sets forth what criminal liability is
imposed upon offenders who neglect their duty with intent to benefit from, promote, or
assist in the commission of an offense.” Id., Sentencing Comm‟n Comments; see also
State v. Jackie Caldwell, No. E2008-00307-CCA-R3-CD (Tenn. Crim. App., Knoxville,
Oct. 6, 2009); State v. Larry E. Rathbone, No. E2007-00602-CCA-R3-CD, slip op. at 9
(“According to the comments to Tennessee Code Annotated section 39-11-402,
subdivision (3) places criminal liability in the situation where a person who has a legal
duty to prevent the crime fails to do so with the specific intent to further the crime.”).
This court has held that “subdivision (3) relates to situations where a person may be
criminally responsible for the conduct of another by failing to act” and observed “that
„for criminal liability to attach, it must be found that there was a legal duty to act and not
simply a moral duty.‟” Larry E. Rathbone, slip op. at 9 (quoting State v. Jeffrey Lloyd
Winders, No. 8-142-III, 1989 WL 105710, at *2-3 (Tenn. Crim. App., Nashville, Sept.
14, 1989)). We also cautioned that the language of the statute did not suggest that the
legislature intended “„to require every citizen to exercise an affirmative duty “imposed by
law” to prevent the commission of a crime‟” but instead intended to limit liability under
the statute “„to members of law enforcement agencies and others (such as care givers or
custodial parents) vested with a specific duty to prevent a crime from occurring‟” and
“„to those who have voluntarily undertaken to prevent commission of the offense.‟”
Larry E. Rathbone, slip op. at 10 (quoting State v. Michael Tyrone Gordon, No. 01C01-
9605-CR-00213 (Tenn. Crim. App., Nashville, Sept. 18, 1997)).

               As discussed more fully above, the defendant bore no legal duty to the
victim, and therefore he was not “vested with a specific duty” to prevent the neglect of
the victim. Additionally, the record showed that, at all relevant times, the victim was
within the exclusive care and control of her mother. Moreover, we cannot say that the
defendant‟s procuring of supplies to treat the victim‟s injuries evinced his intent to
voluntarily assume the role of the victim‟s caretaker, particularly given the undisputed
evidence that the defendant saw the victim only once and that Ms. Wiley did not show
the defendant the full extent of the victim‟s injuries. Finally, “subdivision (3) of the
criminal responsibility statute not only requires a legal duty, but also requires that the
individual act with a culpable mental state, specifically, the intent to promote or assist the
commission of the offense or to benefit in the proceeds or results of the offense.” Larry
E. Rathbone, slip op. at 11. We have already concluded that the evidence did not
sufficiently establish that the defendant acted with the intent to promote or assist in Ms.
Wiley‟s neglect of the victim.

            Consequently, because the evidence was insufficient to establish that the
defendant was criminally responsible for Ms. Wiley‟s neglect of the victim, the
                                            -10-
defendant‟s conviction of aggravated child neglect is reversed, and the charge is
dismissed.

             Although we have concluded that insufficiency of evidence requires that
the defendant‟s conviction be reversed and the charge dismissed, we review the
remaining issues to facilitate any further appellate review.

                                      II. Photographs

               The defendant next contends that the trial court erred by admitting
photographs of the victim‟s injuries taken when she went to the hospital for treatment.
He argues that, because he was willing to stipulate that the victim suffered serious bodily
injury in the form of second- and third-degree burns, the only purpose of the entry of the
photographs was to inflame the passions of the jury. The State argues that the
photographs were relevant to show that “the defendant was aware of the injuries, and in
spite of this knowledge, assisted and encouraged” the victim‟s mother not to seek medical
treatment for the victim.

               “Tennessee courts have consistently followed a policy of liberality in the
admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d
895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The
general rule . . . is that photographs . . . are admissible if they are „relevant to the issues
on trial, notwithstanding their gruesome and horrifying character.‟” Carter, 114 S.W.3d
at 902 (quoting Banks, 564 S.W.2d at 950–51). Relevant evidence is evidence “having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. Even relevant photographs may be excluded, however, if
their probative value is substantially outweighed by the danger of unfair prejudice. Tenn.
R. Evid. 403; Banks, 564 S.W.2d at 950–51. The term “unfair prejudice” has been
defined as “[a]n undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” See Banks, 564 S.W.2d at 951. “The
admission of photographs lies within the sound discretion of the trial court and will not
be overturned on appeal absent a showing that the trial court abused that discretion.”
State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011) (citing Banks, 564 S.W.2d at 949).

               The photographs admitted in this case certainly confirm that the victim
suffered serious bodily injury, an element of aggravated child neglect. That being said,
the photographs were not particularly relevant to the defendant‟s knowledge of the
victim‟s injuries because the photographs were taken several days after the defendant had
seen the injuries and because the proof established that the defendant had not seen the full
extent of the injuries. The danger for unfair prejudice certainly exists here, where the
                                             -11-
photographs depict terrible injuries to an 18-month-old child. Although it is a close
question, we conclude that the trial court did not abuse its discretion by admitting the
photographs in this case.

                                III. Defendant’s Statement

               The defendant avers that the trial court erred by refusing to play the entire
content of his audio recorded statement to the police under the rule of completeness. The
State asserts that the trial court did not err because the unplayed portion of the statement
contained inadmissible hearsay.

               Unfortunately for the defendant, the entire, unredacted recording does not
appear in the record on appeal. Without hearing the recording, we cannot assess the
impact of the trial court‟s exclusion of the evidence. When the trial court makes a ruling
excluding evidence, the party offering the evidence is obliged to make an offer of proof
to preserve the issue for review. See Tenn. R. Evid. 103(a)(2) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of
the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance
of the evidence and the specific evidentiary basis supporting admission were made
known to the court by offer or were apparent from the context.”); see also State v. Hall,
958 S.W.2d 679, 691 n.10 (Tenn. 1997) (“Not only does [an offer of proof] ensure
effective and meaningful appellate review, it provides the trial court with the necessary
information before an evidentiary ruling is made. Indeed, generally, if an offer of proof
is not made, the issue is deemed waived and appellate review is precluded.”); State v.
Goad, 707 S.W.2d 846, 853 (Tenn. 1986) (“In order for an appellate court to review a
record of excluded evidence, it is fundamental that such evidence be placed in the record
in some manner.”). Furthermore, the appellant bears the burden of preparing an adequate
record on appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the
appellant fails to file an adequate record, this court must presume the trial court‟s ruling
was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).

                               IV. Lesser Included Offenses

               The defendant contends that the trial court erred by refusing to instruct the
jury that a violation of the duty to report under Code section 37-1-412 is a lesser included
offense of aggravated child neglect as charged in this case. The State asserts that the trial
court committed no error.

              Prior to trial, the defendant moved the trial court to instruct the jury that a
violation of the duty to report as defined in Code section 37-1-412 is a lesser included
offense of aggravated child neglect. The trial court refused.
                                            -12-
              Tennessee Code Annotated section 40-18-110 provides, in pertinent part, as
follows:

              An offense is a lesser included offense if:

              (1) All of its statutory elements are included within the
              statutory elements of the offense charged;

              (2) The offense is facilitation of the offense charged or of an
              offense that otherwise meets the definition of lesser included
              offense in subdivision (f)(1);

              (3) The offense is an attempt to commit the offense charged
              or an offense that otherwise meets the definition of lesser
              included offense in subdivision (f)(1); or

              (4) The offense is solicitation to commit the offense charged
              or an offense that otherwise meets the definition of lesser
              included offense in subdivision (f)(1).

Id. § 40-18-110(f).

              Our Code defines aggravated child neglect, as charged in this case, as
follows:

              (a) A person commits the offense of . . . aggravated child
              neglect . . . who commits . . . child neglect, as defined in § 39-
              15-401(b) . . . :

              (1) The act of abuse, neglect or endangerment results in
              serious bodily injury to the child.

T.C.A. § 39-15-402(a)(1). Code section 39-15-401 provides:

              Any person who knowingly abuses or neglects a child under
              eighteen (18) years of age, so as to adversely affect the
              child‟s health and welfare, commits a Class A misdemeanor;
              provided, that, if the abused or neglected child is eight (8)
              years of age or less, the penalty is a Class E felony.

                                            -13-
Id. § 39-15-401(b). Code section 37-1-412, regarding a violation of the duty to report,
provides that “[a]ny person who knowingly fails to make a report required by § 37-1-403
commits a Class A misdemeanor.” Id. § 37-1-412(a). Code section 37-1-403 provides,
in pertinent part:

              Any person who has knowledge of or is called upon to render
              aid to any child who is suffering from or has sustained any
              wound, injury, disability, or physical or mental condition
              shall report such harm immediately if the harm is of such a
              nature as to reasonably indicate that it has been caused by
              brutality, abuse or neglect or that, on the basis of available
              information, reasonably appears to have been caused by
              brutality, abuse or neglect.

Id. § 37-1-403(a).

               An examination of the two statutes reveals that all of the elements of a
violation of the duty to report are not included within the offense of aggravated child
neglect. As explained, aggravated child neglect has three elements: “(1) a person
knowingly must neglect a child; (2) the child‟s age must be within the applicable range
set forth in the statute; and (3) the neglect must adversely affect the child‟s health and
welfare.” Sherman, 266 S.W.3d at 404. A violation of the duty to report requires a
showing that (1) a person knows about or has been asked “to render aid to any child who
is suffering from or has sustained any wound, injury, disability, or physical or mental
condition”; (2) “the harm is of such a nature as to reasonably indicate that it has been
caused by brutality, abuse or neglect or that, on the basis of available information,
reasonably appears to have been caused by brutality, abuse or neglect”; (3) the person has
failed to report the harm to the appropriate authorities. T.C.A. § 37-1-412(a). Because
all of the elements of a violation of the duty to report are not included within the offense
of aggravated child neglect, violation of the duty to report does not meet the statutory
definition of a lesser included offense, and the trial court did not err by refusing to
provide a jury instruction on that offense.

                                       V. Sentencing

             In his final claim for relief, the defendant asserts that the trial court erred by
imposing a Range II sentence when the State failed to file a notice seeking enhanced
punishment as required by Code section 40-35-202. The State contends that the
defendant waived any complaint regarding his range classification by conceding at the
sentencing hearing that he was a Range II offender.

                                             -14-
               Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40 35 103(5). Trial courts are “required under the 2005 amendments
to „place on the record, either orally or in writing, what enhancement or mitigating factors
were considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 40 35 210(e)).
Ultimately, under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

              Code section 40-35-202 provides:

              If the district attorney general believes that a defendant
              should be sentenced as a multiple, persistent or career
              offender, the district attorney general shall file a statement
              thereof with the court and defense counsel not less than ten
              (10) days before trial or acceptance of a guilty plea; provided,
              that notice may be waived by the defendant in writing with
              the consent of the district attorney general and the court
              accepting the plea. The statement, which shall not be made
              known to the jury determining the guilt or innocence of the
              defendant on the primary offense, must set forth the nature of
              the prior felony convictions, the dates of the convictions and
              the identity of the courts of the convictions. The original or
              certified copy of the court record of any prior felony
              conviction, bearing the same name as that by which the
              defendant is charged in the primary offense, is prima facie
              evidence that the defendant named in the record is the same
              as the defendant before the court, and is prima facie evidence
              of the facts set out in the record.

T.C.A. § 40-35-202(a). “The purpose of the requirement is to provide the defendant with
„fair notice‟ that he is exposed to something other than standard sentencing. It is intended
to facilitate plea-bargaining, to inform plea decisions, and to assist with trial strategy.”
State v. Benham, 113 S.W.3d 702, 705 (Tenn. 2003) (quoting State v. Adams, 788 S.W.2d
557, 559 (Tenn. 1990)).
                                            -15-
             [T]he notice provision of Tenn. Code Ann. § 40-35-202(a)
             requires, at a minimum, that the State file: (1) written notice,
             (2) clearly expressing the State's intention to seek sentencing
             outside of the standard offender range, (3) setting forth the
             nature of the prior felony conviction, the dates of the
             convictions, and the identity of the courts of the convictions.

State v. Livingston, 197 S.W.3d 710, 713-14 (Tenn. 2006) (footnote omitted). “Failure to
file any notice to seek enhanced sentencing pursuant to Tennessee Code Annotated
section 40-35-202(a) is grounds for re-sentencing as a Range I offender.” State v.
Cooper, 321 S.W.3d 501, 507 (Tenn. 2010) (citing State v. Pender, 687 S.W.2d 714,
719–20 (Tenn. Crim. App. 1984)).

                The defendant correctly points out that no notice appears in the record on
appeal. At the sentencing hearing, however, the State indicated that it had “provided
notice to [the defendant] prior to trial that he was a Range II offender.” Also at the
sentencing hearing, the defendant acknowledged both his criminal record and his release
eligibility classification: “[The defendant] absolutely 100 percent does have a record and
that record makes him a Range II . . . .” Because the defendant acknowledged at the
sentencing hearing that he had notice of his record and that he was a Range II offender,
we are not inclined to conclude that the absence of the required statutory notice from the
appellate record indicates that the State actually failed to file notice as required under
Code section 40-35-202. Consequently, the trial court did not err by imposing a Range II
sentence.

                                       Conclusion

              The evidence adduced at trial was insufficient to support the defendant‟s
conviction of aggravated child neglect. Accordingly, we reverse the judgment of the trial
court and dismiss the charge against the defendant.


                                         _________________________________
                                         JAMES CURWOOD WITT, JR., JUDGE




                                           -16-
