STATE v. GOMEZ, M2008-02737-CCA-R3-CD (Tenn.Crim.App. 9-10-2010)

<>See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

Because no eyewitness testified regarding the identity of the perpetrator of the crimes in this case, we note that

the law is firmly established in this State that to warrant a criminal conviction upon circumstantial evidence alone, the evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with his innocence and must exclude every other reasonable theory or hypothesis except that of guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that he is the one who committed the crime.

Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970). "The inferences to be drawn from [circumstantial] evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury."Id. at 391 (quoting Marable v. State, 313 S.W.2d 451, 452 (Tenn. 1958)).

After the State's election of offenses, the trial court instructed the jury to consider the conduct underlying each count of the indictment as follows:

For [C]ount [O]ne, felony murder during the perpetration or attempted perpetration of aggravated child abuse: "The [D]efendant(s) caused head trauma involving bleeding into the brain, damage to the axons of the brain, and brain swelling which later caused the death of [the victim] on or about March 3, 2007."

For [C]ount [T]wo, felony murder during the perpetration or attempted perpetration of aggravated child neglect: "The [D]efendant(s) caused head trauma involving bleeding to the brain, damage to the axons of the brain, and brain swelling and then failed to seek immediate medical attention for her injuries which later caused the death of [the victim] on or about March 3, 2007."

For [C]ount [T]hree, aggravated child abuse: "The [D]efendant(s) caused multiple acute rib fractures to [the victim] on or about March 3, 2007."

For [C]ount [F]our, aggravated child abuse: "The [D]efendant(s) caused blunt abdominal trauma, consisting of jejunal and mesenteric bleeding to [the victim] on or about March 3, 2007."

For [C]ount [F]ive, aggravated child abuse: "The [D]efendant(s) caused two rib fractures and prior brain injury to [the victim] on a day in February 2007 which were discovered at the time of autopsy and showed evidence of healing indicating they had occurred at least a week earlier than March 3, 2007."

A. Defendant Gomez

Defendant Gomez was convicted as charged of Counts One through Five. He appeals the sufficiency of the evidence supporting each conviction.

i. Motion for Judgment of Acquittal

Defendant Gomez appears to argue that the trial court should have directed a verdict on his behalf after the close of the State's proof. Directed verdicts have been abolished in Tennessee, however.See Tenn. R. Crim. P. 29(a). Defendant Gomez might instead argue that the trial court should have granted him a judgment of acquittal; in choosing to cross-examine Defendant Lopez, however, he failed to stand on his motion. He has thus waived this issue.See Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citation omitted); see also Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979) (stating that a petitioner had waived appellate review of his motion for acquittal by "[failing] to close his case at the conclusion of the State's proof and by participating in the trial by the cross-examination of his co-defendant").

ii. Aggravated Child Abuse

A person commits aggravated child abuse, as applied to the facts of this case, who "commits child abuse . . . and: (1) the act of abuse . . . results in serious bodily injury to the child." Tenn. Code Ann. § 39-15-402(a). A person commits simple child abuse who "knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury." Tenn. Code Ann. § 39-15-401(a). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b).

a. February 2007

During the victim's autopsy, Dr. Lewis found two calloused rib fractures that she estimated to be between fourteen and twenty-eight days old at the time of the victim's death. Dr. Becher found evidence of older shearing injury to the victim's brain, as well as subacute swelling that he estimated to be between eighteen hours and three weeks old at the time of the victim's death. Because rib fractures and shearing injury are consistent with shaken baby syndrome, this evidence is sufficient to establish that the victim was shaken between fourteen and twenty-eight days before her death.

We conclude, however, that the evidence is not sufficient to establish Defendant Gomez's identity as the perpetrator of the February 2007 shaking injury. No direct or circumstantial evidence established the events surrounding this injury. During that month, the Defendants lived with Defendant Lopez's sister, her husband, and their brother. No testimony established whether other possible perpetrators visited their residence or whether the victim was in the sole care of Defendant Gomez at the time she was injured. Although we acknowledge that the evidence establishing the circumstances of the victim's later, fatal injuries might understandably lead one to believe that Defendant Gomez also inflicted the victim's earlier injuries, this paucity of evidence simply does not "exclude every other reasonable theory or hypothesis except that of guilt." Pruitt, 460 S.W.2d at 390. We accordingly reverse and vacate Defendant Gomez's Count Five conviction of aggravated child abuse.

b. March 2-3, 2007

Both Dr. Meers and Dr. Lewis established that the victim died between four and six hours before her body's arrival at Baptist, meaning that she died between 4:00 and 6:00 a.m. on March 3. Dr. Lewis estimated the time of death at closer to six hours before 10:00 a.m. Dr. Becher established a minimum survival time of three to six hours after her injury; combining both estimates, this establishes that the victim was injured sometime between 10:00 p.m. on March 2 and 3:00 a.m. on March 3. Crediting Dr. Lewis' more likely 4:00 a.m. time of death, the victim was injured between 10:00 p.m. on March 2 and 1:00 a.m. on March 3.

Each of the Defendants' housemates testified that the Defendants were home during this time frame. Each of their housemates also testified that the Defendants were the victim's exclusive care providers. Testimony established that Defendant Gomez was alone in the room he shared with the victim and Defendant Lopez until Defendant Lopez returned from work; Defendant Lopez said she left work at about 12:30 a.m. on March 3. Detective Bruner estimated that Defendants lived between fifteen and twenty minutes away from VUMC, meaning that Defendant Lopez returned home between 12:45 and 12:50 a.m.

This evidences thus supports the conclusion that Defendant Gomez was the only person with the victim during all but ten to fifteen minutes of the time period in which the victim was injured. Further, Defendant Lopez testified that she did not physically abuse the victim and that no one else but she and Defendant Gomez cared for the victim. Although it is clear that the State challenged Defendant Lopez's credibility on other matters at issue in this case and that the jury, in convicting her, disbelieved some of her testimony, "the jury is free to believe portions of a witness' testimony and to disbelieve other portions." State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citation omitted).

Dr. Lewis testified that an adult causing the victim's injuries would have been aware that his or her conduct was injurious and that the victim's rib fractures could not have been caused by the same action which caused her mesenteric and jejunal bleeding. Finally, medical testimony established that the victim's injuries could only have been caused by child abuse or a major traumatic event like a car accident. No testimony evidenced any such event.

This evidence is both consistent with Defendant Gomez's guilt and inconsistent with his innocence. See Pruitt, 460 S.W.2d at 390. It shows that the victim non-accidentally sustained multiple rib fractures and blunt abdominal trauma at a time when she was alone in a room with Defendant Gomez. It also shows that Defendant Gomez could not have caused these injuries unknowingly. See Tenn. Code Ann. § 39-11-302(b). We conclude that the evidence is sufficient to convict Defendant Gomez of Counts Three and Four.

iii. Felony Murder

The Defendant next challenges the sufficiency of the evidence convicting him of felony murder. Felony murder is "[a] killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy." Tenn. Code Ann. § 39-13-202(a)(2).

There is no dispute that the victim died as a result of the injuries she sustained on or about March 3. We have concluded that the evidence is sufficient to convict Defendant Gomez of inflicting multiple rib fractures on the victim; the evidence showed that the same conduct "caused [the] head trauma involving bleeding to the brain, damage to the axons of the brain, and brain swelling" charged in Count One. The proof therefore supports the Defendant's conviction of felony murder during the perpetration of aggravated child abuse.

It is also sufficient to convict the Defendant of felony murder during the perpetration of aggravated child neglect. A person commits aggravated child neglect, as applied to the facts of this case, who "commits child neglect . . . and: (1) the act of neglect . . . results in serious bodily injury to the child." Tenn. Code Ann. § 39-15-402(a). A person commits simple child neglect who "knowingly abuses or neglects a child under eighteen (18) years of age, so as to adversely affect the child's health and welfare." Tenn. Code Ann. § 39-15-401(b). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b). Medical testimony established that the seriousness of the victim's injuries would have been obvious to an observer; despite the evident severity of the victim's injuries, Defendant Gomez failed to seek prompt medical attention, eliminating any chance of saving the victim.

We have concluded that the State presented evidence sufficient to convict Defendant Gomez of Counts One through Four. We have concluded that the State presented insufficient evidence to convict him of Count Five, and accordingly vacate that conviction and sentence.

B. Defendant Lopez

Under Counts One and Two, Defendant Lopez was convicted of the lesser-included offense of facilitation of first degree murder. She was convicted as charged of the allegations of aggravated child abuse contained in Counts Three and Four, those counts arising from conduct occurring on or about March 3, 2007. She was found not guilty of the allegation of aggravated child abuse contained in Count Five, that count arising from conduct occurring in February 2007.

i. Aggravated Child Abuse

Again, a person commits aggravated child abuse, as applied to the facts of this case, who "commits child abuse . . . and: (1) the act of abuse . . . results in serious bodily injury to the child." Tenn. Code Ann. § 39-15-402(a). A person commits simple child abuse who "knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury." Tenn. Code Ann. § 39-15-401(a). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b).

The evidence at trial was not sufficient to show that Defendant Lopez actually inflicted the victim's injuries. We must therefore evaluate the sufficiency of the evidence of aggravated child abuse under a theory of criminal responsibility, on which the jury was instructed by the trial court. Tennessee statutes provide that a person is "criminally responsible for an offense committed by the conduct of another if: [A]cting with intent to promote or assist the commission of the offense, or to the benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense." Tenn. Code Ann. § 39-11-402(2). This statute codifies the longstanding common law theories of "accessories before the fact and aiders and abettors." Tenn. Code Ann. § 39-11-402, Sentencing Commission Comments. However, criminal responsibility is not itself a separate crime; rather, it is "solely a theory by which the State may prove the defendant's guilt of the alleged offense . . . based upon the conduct of another person." State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999).

A defendant may be criminally responsible for the crime of another when, "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 [defendant] fails to make a reasonable effort to prevent commission of the offense." Tenn. Code Ann. § 39-11-402(3). A parent has a duty imposed by law to "protect [his or her child] from harm and provide [him or her] with emergency attention." State v. Hodges, 7 S.W.3d 609, 623 (Tenn. Crim. App. 1998) (citations omitted).

Defendant Lopez was acquitted of the February 2007 incident of aggravated child abuse charged in Count Five; she was convicted of criminal responsibility for Defendant Gomez's infliction of multiple rib fractures as well as abdominal trauma to the victim on March 2 or 3, 2007. We conclude that the evidence is sufficient to show that Defendant Lopez failed to make a reasonable effort to prevent the commission of the two acts of aggravated child abuse charged in Counts Three and Four because she failed to protect the victim from harm by providing emergency medical attention. Medical testimony uniformly established that the victim could not have sustained her injuries without entering a state of noticeable medical distress thereafter. The proof established that Defendant Lopez slept next to and in the same bed with the victim. Any rational juror could have believed that, when she returned home at about 1:00 a.m., Defendant Lopez would have noticed the victim's injuries or the fact that she was having difficulty breathing. Any rational juror also could have believed that, upon waking up at 5:00 a.m., Defendant Lopez would have noticed either that the victim had died, because the victim was estimated to have died between 4:00 and 6:00 a.m., or the victim's continued breathing difficulty. Defendant Lopez took no action. As in Hodges, "[t]his proof is sufficient for the jury to infer [Defendant Lopez's] intent to promote or assist in the infliction of injury or neglect of the child." Id. at 624. Although we note Defendant Lopez's claim that she observed the victim upon returning home and upon waking up and noticed nothing wrong, the jury obviously chose not to credit this testimony. This issue is without merit.

ii. Facilitation of First Degree Murder

Defendant Lopez was convicted of one count of facilitation of felony murder during the perpetration of aggravated child neglect and one count of facilitation of felony murder during the perpetration of aggravated child abuse. The trial court merged the two convictions.

Tennessee Code Annotated section 39-11-403(a) outlines the general requirements for conviction of facilitation of a felony, stating that "[a] person is criminally responsible for facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony." We have applied this section to the specific felony of facilitating felony murder:

Facilitation of felony murder requires proof that:

(1) One of the felonies listed in Tennessee Code Annotated section 39-13-202(a)(2) or (3) was committed;

(2) The victim was killed during the commission of that offense;

(3) The defendant knew that another person intended to commit the underlying felony, but he or she did not have the intent to promote or assist the commission of the offense or to benefit in the proceeds or results of the offense; and

(4) The defendant knowingly furnished substantial assistance to that person in the commission of the underlying felony.

State v. Jason Lebron Rogers, No. E2007-00354-CCA-R3-CD, 2008 WL 2278514, at *11 (Tenn. Crim. App., Knoxville, June 4, 2008) (citing State v. Margie Jeanette Farley, No. M2003-02826-CCA-R3-CD, 2005 WL 366890, at *9 (Tenn. Crim. App., Nashville, Feb. 16, 2005)).

We have concluded that the evidence sufficiently shows that Defendant Gomez committed felony murder under Counts One and Two, aggravated child abuse and neglect being listed in Tennessee Code Annotated section 39-13-202(a)(2). There is no dispute that the victim died. Elements (1) and (2) of facilitation of felony murder have therefore been established.

a. Facilitation of Felony Murder — Aggravated Child Neglect

We have previously concluded that the evidence is sufficient to establish that Defendant Lopez became aware of the victim's injuries and did nothing to assist her. The evidence also establishes that she observed Defendant Gomez sleeping next to the injured victim at about 1:00 a.m. and 5:00 a.m., the same times she observed the victim; because medical evidence established that the victim was in an obvious state of distress at these times, Defendant Lopez's knowledge that Defendant Gomez was not offering assistance is sufficient to establish her knowledge that Defendant Gomez intended to commit the underlying felony of aggravated child neglect.

The jury also found that Defendant Lopez acted without "the intent required for criminal responsibility under § 39-11-402(2). More specifically, the jury apparently found that although Defendant Lopez at least "knowingly furnish[ed] substantial assistance" to Defendant Gomez's acts of neglect, she did so while lacking the "intent to promote or assist the commission" of those acts of neglect. See Tenn. Code Ann. §§ 39-11-402(2),-403(a).

We note that Defendant Lopez's convictions of criminal responsibility for aggravated child abuse and facilitation of felony murder are inconsistent in the sense that the former convictions require proof that Defendant Lopez, in ignoring the victim's precarious medical state, had the intent required for criminal responsibility under section 39-11-402(2) and the latter convictions reflect a finding that she did not have that intent. However, we also note that, "[c]onsistency in verdicts for multiple count indictments is unnecessary as each count is a separate indictment," and we "will not upset a seemingly inconsistent verdict by speculating as to the jury's reasoning if we are satisfied that the evidence establishes guilt of the offense upon which the conviction was returned." Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973).

b. Facilitation of Felony Murder — Aggravated Child Abuse

Having previously concluded that the evidence is sufficient to establish that Defendant Lopez is criminally responsible for the conduct of Defendant Gomez for aggravated child neglect, we also conclude that the evidence is sufficient to establish that she facilitated the felony murder of the victim through Defendant Gomez's aggravated child abuse. Although we acknowledge the internal inconsistencies of the jury's verdicts discussed above, we conclude that the evidence presented supports the verdicts of guilt beyond a reasonable doubt.

II. Testimony Regarding Defendant Gomez's Prior Violent Acts

Both Defendants contend that the trial court erred in allowing the State to cross-examine Defendant Lopez about incidents of domestic violence between her and Defendant Gomez after she responded "no" to Defendant Gomez's counsel's question on cross examination, "Did you ever think [Defendant Gomez] could hurt his own daughter?"

Both Defendants address the admissibility of this evidence under Tennessee Rule of Evidence 404(b), which dictates that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with that character trait." Tenn. R. Evid. 404(b). The State did not seek to cross-examine Defendant Lopez about prior incidents of domestic violence in order to demonstrate that Defendant Gomez had a violent character; it sought to cross-examine Defendant Lopez in order to attack her credibility and demonstrate that she had been warned and therefore knew that Defendant Gomez might be a danger to the victim. In our view, Rule 404(b) is therefore inapplicable.

A. Curative Admissibility

On appeal, the State argues that this testimony was admissible under the doctrine of curative admissibility. "This doctrine provides that `[w]here a defendant has injected an issue into the case, the State may be allowed to admit otherwise inadmissable evidence in order to explain or counteract a negative inference raised by the issue defendant injects.'" State v. Land, 34 S.W.3d 516, 531 (Tenn. Crim. App. 2000) (citing State v. Armentrout, 8 S.W.3d 99, 111 (Mo. 1999)). "[I]n a criminal case, `[t]he rule operates to prevent an accused from successfully gaining exclusion of inadmissible prosecution evidence and then extracting selected pieces of this evidence for his own advantage, without the Government being able to place them in their proper context.'" Id. (citing Lampkins v. United States, 515 A.2d 428, 431 (D.C. 1986)).

Regarding the breadth of the curative admissibility doctrine, this Court explained in Land that

its applicability is limited by, "the necessity of removing prejudice in the interest of fairness." Crawford v. United States, 198 F.2d 976, 979 (1952) (D.C. Cir. 1952) (citations omitted). It is not an unconstrained remedy permitting introduction of inadmissible evidence merely because the opposing party brought out evidence on the same subject. [ People v. Manning, 695 N.E.2d 423, 434 (Ill. 1998)] (citation omitted). The rule is protective and goes only so far as is necessary to shield a party from adverse inferences and is not to be converted into a doctrine for injecting prejudice. Id. (citation omitted). Only that evidence which is necessary to dispel the unfair prejudice resulting from the cross-examination is admissible. United States v. Winston, 447 F.2d 1236 (D.C. Cir. 1971).

Land, 34 S.W.3d at 531-32. "If the trial court decides to admit such testimony on a theory of curative admissibility, however, its decision will not be reversed on appeal unless the appellant can demonstrate a clear abuse of discretion." Id. at 532.

Defendant Lopez contends that her testimony did not "open the door" to evidence of Defendant Gomez's prior violent acts because her testimony "neither asserted nor implied that Gomez was nonviolent." While it is true that Defendant Lopez's testimony did not state that Defendant Gomez had never been violent to her, we cannot agree that the trial court erred in concluding that the testimony implied that Defendant Gomez had a nonviolent nature. While perhaps a close question, we conclude that the trial court did not abuse its discretion in ruling that evidence of Defendant Gomez's prior violent acts tended to call into question Defendant Lopez's testimony that she never thought Defendant Gomez could hurt the victim, especially because this evidence allowed the State to confirm that Defendant Lopez's sister, as well as her coworker, Ms. Soto, told Defendant Lopez that Defendant Gomez was a danger to the victim. The testimony therefore allowed the State to "explain or counteract a negative inference" raised by Defendant Lopez's testimony,Id. at 531 (citing Armentrout, 8 S.W.3d at 111), namely that Defendant Lopez had no reason to believe Defendant Gomez might hurt the victim. It also allowed the jury a more complete set of facts under which to assess the credibility of Defendant Lopez's testimony and her knowledge of the danger Defendant Gomez may have posed to the victim.

We must also decide whether the admission of evidence of Defendant Gomez's prior violent acts went farther than necessary to cure the unfair prejudice caused by Defendant Lopez's original statement.See Id. at 532. We conclude that it did not. The State inquired about one police-documented incident as well as two other incidents reported by Defendant Lopez's coworker, Ms. Soto. The State's aim was to establish the existence of these three incidents. Defendant Lopez's testimony during the State's cross-examination was prolonged somewhat by her initial insistence that Defendant Gomez had assaulted her only once and by her testimony that she had lied to Ms. Soto about a later incident of domestic violence.

For similar reasons, we agree with the trial court that Defendant Gomez "opened the door" to Defendant Lopez's testimony when Gomez's counsel asked Defendant Lopez if she ever "thought" that Defendant Gomez could hurt the victim. We conclude that the trial court did not abuse her discretion in allowing the State to cross-examine Defendant Lopez regarding her response to this question. This issue is without merit.

III. Sentencing

Next, both Defendants contend that the trial court erred in sentencing them. On appeal, the party challenging the sentence imposed by the trial court has the burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm'n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges the length, range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the record with a presumption that the determinations made by the court from which the appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial court failed to consider the sentencing principles and all relevant facts and circumstances, then review of the challenged sentence is purely de novo without the presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991);see also Carter, 254 S.W.3d at 344-45.

In conducting a de novo review of a sentence, this Court must consider (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) evidence and information offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the defendant's own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

A. Defendant Gomez

Defendant Gomez's sentencing hearing was held on November 19, 2008. Defendant Gomez made a statement but put on no other proof. His presentence report indicates that, at the time of sentencing, Defendant Gomez was a twenty-eight-year-old Hispanic male. He had one prior conviction, for driving under the influence of an intoxicant in 2006. Defendant Gomez stated that he habitually drank "enough to get drunk" on weekends, but did not drink during the week. Defendant Gomez reported good mental and physical health, and stated that he had attended school in Guatemala through the equivalent of the eighth grade. He reported no employment history.

Defendant Gomez contends that the trial court erred in ordering him to serve his Count Five aggravated child abuse sentence consecutively to his other, concurrent sentences. We previously concluded that the State presented evidence insufficient to convict Defendant Gomez of Count Five. In order to facilitate possible further appellate review, however, we will consider his challenge to his consecutive sentence while assuming, for the purpose of argument, that we have not vacated his Count Five conviction.

Tennessee Code Annotated section 40-35-115(b) lists the criteria a court must use to determine whether a defendant convicted of more than one criminal offense will serve the resulting sentences consecutively or concurrently. The trial court in this case ordered the Defendant to serve his sentences consecutively based on its finding that the Defendant "is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." Tenn. Code Ann. § 40-35-115(b)(4). Although the decision between consecutive and concurrent sentencing lies within the sound discretion of the trial court, see State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984), "the imposition of consecutive sentences on an offender found to be a dangerous offender requires, in addition to the application of general principles of sentencing, the finding that an extended sentence is necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences must reasonably relate to the severity of the offenses committed." State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

Our review of the record confirms that the trial court found bothWilkerson prongs applicable to Defendant Gomez. The trial court is thus entitled to a presumption of correctness. Pettus, 986 S.W.2d at 543-44. Defendant Gomez solely contends that the second prong is inapplicable given his life sentence and the fact that he has no other children. The evidence at trial did not only show a pattern of violence toward the victim, however; other evidence was sufficient to establish that Defendant Gomez assaulted Defendant Lopez on at least three occasions. The trial court did not abuse its discretion in finding that an extended sentence was necessary to protect the public against further criminal conduct by Defendant Gomez. This issue is without merit.

B. Defendant Lopez

Defendant Lopez's sentencing hearing was held on November 12, 2008. Defendant Lopez presented the testimony of James Thilgen, the deputy director of the Metropolitan Development and Housing Agency, who established that over the preceding ten or twelve years he had volunteered his time in order to provide jail inmates with "someone to write to or to visit." He testified that he had met with Defendant Lopez about seven or eight times at Correctional Development Center, the site of her incarceration. He noted that Defendant Lopez had used her time in incarceration to learn English and complete a vocational education program in which she and other inmates developed a business plan. Having become aware of Defendant Lopez's upcoming sentencing hearing, Mr. Thilgen contacted defense counsel and arranged to speak on Defendant Lopez's behalf. He also said that Defendant Lopez had assisted other inmates and had become extremely concerned about her sentencing hearing.

Her presentence report indicates that, at the time of sentencing, Defendant Lopez was a twenty-one-year-old Hispanic female. She reported one previous, unverified job in Guatemala, as well as her employment at Taco Bell from December 2006 to March 2007. Defendant Lopez reported "poor" mental health, noting that she had not been eating or sleeping well and had been under the observation of her attorney and jail personnel. She stated that she attended school in Guatemala through the equivalent of the eighth grade. She had no prior criminal record.

Defendant Lopez contends that the trial court erred in setting the length of her sentences. The Defendant's conduct occurred subsequent to the enactment of the 2005 amendments to the Sentencing Act, which became effective June 7, 2005. The amended statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further explained by our supreme court in Carter,

the trial court is free to select any sentence within the applicable range so long as the length of the sentence is "consistent with the purposes and principles of [the Sentencing Act]." [Tenn. Code Ann.] § 40-35-210(d). Those purposes and principles include "the imposition of a sentence justly deserved in relation to the seriousness of the offense," [Tenn. Code Ann.] § 40-35-102(1), a punishment sufficient "to prevent crime and promote respect for the law," [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant's "potential or lack of potential for . . . rehabilitation," [Tenn. Code Ann.] § 40-35-103(5).

Id. (footnote omitted).

The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing of the enhancement and mitigating factors, as it rendered these factors merely advisory, as opposed to binding, upon the trial court's sentencing decision. Id. Under current sentencing law, the trial court is nonetheless required to "consider" an advisory sentencing guideline that is relevant to the sentencing determination, including the application of enhancing and mitigating factors. Id. at 344. The trial court's weighing of various mitigating and enhancing factors is now left to the trial court's sound discretion. Id. Thus, the 2005 revision to Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court exercises when imposing a sentencing term.Id. at 344.

To facilitate appellate review, the trial court is required to place on the record its reasons for imposing the specific sentence, including the identification of the mitigating and enhancement factors found, the specific facts supporting each enhancement factor found, and the method by which the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating and/or enhancement factors or otherwise failed to follow the Sentencing Act, the presumption of correctness fails and our review is de novo.Carter, 254 S.W.3d at 345.

Defendant Lopez, as a standard offender convicted of four Class A felonies, faced a sentencing range of fifteen to twenty-five years for each conviction. See Tenn. Code Ann. § 40-35-112(a)(1). The trial court sentenced Defendant Lopez to the maximum of twenty-five years for each conviction based on its finding of the following enhancement factors: that the victim was particularly vulnerable because of age; that Defendant Lopez treated, or allowed the victim to be treated, with exceptional cruelty during the commission of the offense; and that Defendant Lopez abused a position of public or private trust. See Tenn. Code Ann. § 40-35-114(4), (5), (14). The trial court also found the following mitigating factors: that Defendant Lopez, who was nineteen years old at the time of the crimes at issue, lacked substantial judgment in committing the offense; that she assisted the authorities in locating or recovering any property or person involved in the crime; that she acted under the duress or under the domination of another person, even though the duress or domination of another person is not sufficient to constitute a defense to the crime; and as a factor consistent with the purposes of the Sentencing Act, that Defendant Lopez had difficulty speaking English at the time of the crimes at issue and that she had learned English and assisted other inmates while incarcerated. See Tenn. Code Ann. § 40-35-113(6), (10), (12), (13). The court noted, however, that Defendant Lopez's enhancement factors, particularly the vulnerability of the victim, "far outweigh[ed] any mitigation."

On appeal, Defendant Lopez argues that the trial court erred in finding as an enhancement factor that she allowed the victim to be treated with exceptional cruelty, see Tennessee Code Annotated section 40-35-114(5), and in failing to find as a mitigating factor that she committed her crimes under such unusual circumstances that it is unlikely that a sustained intent to violated the law motivated her criminal conduct. See Tenn. Code Ann. § 40-35-113(11).

We conclude that the trial court, in its discretion, could have ordered Defendant Lopez to serve twenty-five year sentences even if it had not applied the enhancement factor for exceptional cruelty and considered her lack of a sustained intent to violate the law. Our review of the record reflects that the trial court properly considered the principles of the Sentencing Act as well as all relevant facts and circumstances. Defendant Lopez concedes that the trial court applied two other enhancement factors correctly, including the factor on which it placed the most weight: that the victim was particularly vulnerable because of age. See Tenn. Code Ann. § 40-35-114(4). The trial court gave mitigating factors little weight. Under these circumstances, we conclude that the trial court's findings adequately support Defendant Lopez's sentences. This issue is without merit.

IV. Defendant Lopez's Remaining Points of Error

A. Exclusion of Non-Citizens from the Jury

Before trial, Defendant Lopez filed a "Motion for a Jury that is Inclusive and Impartial," on which the trial court held a hearing. At the hearing, Defendant Lopez presented proof establishing that persons who are not citizens of the United States are disqualified from serving on Tennessee juries, and that this disqualification excludes approximately two to three percent of otherwise qualified residents of Davidson County. She also presented the testimony of three resident aliens who discussed their cultural backgrounds, their differing cultural perspectives, and their reasons for declining to pursue United States citizenship.

Tennessee Code Annotated section 22-1-101 states that "[e]very person eighteen (18) years of age, being a citizen of the United States, and a resident of this state, and of the county in which the person may be summoned for jury service for a period of twelve (12) months next preceding the date of the summons, is legally qualified to act as a grand or petit juror." (Emphasis added). Defendant Lopez next contends that the trial court erred in denying her motion and excluding non-citizens from the jury, and attacks section 22-1-101 as violative of the Tennessee Constitution. The trial court held that section 22-1-101 does not violate the Tennessee Constitution.

"[W]hen considering the constitutionality of a statute, courts have a duty to adopt a construction which will sustain the statute and avoid constitutional conflict if at all possible, and this duty requires courts to indulge every presumption and resolve every doubt in favor of the statute's constitutionality." State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002).

The constitutionality of section 22-1-101's citizenship requirement is a matter of first impression. Defendant Lopez cites a number of passages from the Tennessee Constitution in support of her argument that the Tennessee Constitution should be read as "properly inclusive and protective of disparate residents of this state" and "as an expansive recognition of the right to be tried by a fair and impartial jury within the county." Among the passages cited by Defendant Lopez, only article I, section 6 explicitly addresses jury qualifications, stating "[t]hat the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors." Our supreme court has stated, however, that

[a]rticle I, section 6 of our Constitution does not guarantee the right to a jury trial in every case. . . . This right has been interpreted to be a trial by jury as it existed at common law, or more specifically, "the common law under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796." For rights and remedies created after the formation of our Constitution, the legislature is free to enact procedures that do not include jury trials.

Helms v. Tennessee Dept. of Safety, 987 S.W.2d 545, 547 (Tenn. 1999) (quoting Patten v. State, 426 S.W.2d 503, 506 (Tenn. 1968)). Although this passage addresses the applicability of the right to a trial by jury rather than jury citizenship requirements, we conclude that its reasoning applies in this context. Defendant Lopez does not contend that "the common law under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796" recognized the right of non-citizens to serve as jurors.

Other jurisdictions have considered the constitutionality of such requirements, typically in response to claims that citizenship requirements for jury service violate the Equal Protection Clause of the United States Constitution, which mandates that "no state . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. In Perkins v. Smith, 370 F. Supp. 134 (D.C. Md. 1974), a three-judge panel of the United States District Court for the District of Maryland held that citizenship requirements contained in the United States Code and the Annotated Code of Maryland did not violate the Fourteenth Amendment, as the government has a compelling interest

in assuring that those who make the ultimate factual decisions on issues of personal liberty and property rights under our system of justice be either native born or naturalized citizens, because it may fairly be concluded that as a class they are more likely to make informed and just decisions in such matters than are non[-]citizens.

Id. at 136. "This has been explicitly recognized, by dictum if not by holding, in several Supreme Court cases which have dealt with juror qualifications under the Fourteenth Amendment."Id. at 138 (citing Carter v. Jury Commission, 396 U.S. 320, 332 (1970) (stating that "[t]he states remain free to confine the selection [of jurors] to citizens"); Jugiro v. Brush, 140 U.S. 291 (1891); Strauder v. West Virginia, 100 U.S. 303 (1880). The United States Supreme Court summarily affirmed the Perkins court's decision. See Perkins v. Smith, 426 U.S. 913 (1976). We agree with the reasoning in these precedents and conclude that nothing in the Tennessee Constitution evidences an intention to confer upon non-citizen residents of Tennessee a greater protection from jury exclusion than that afforded by the Fourteenth Amendment.

Defendant Lopez's citation of our supreme court's holding inState v. Bell, 745 S.W.2d 858 (Tenn. 1988), is thus inapposite. While it is true that a criminal defendant is constitutionally entitled, under the Sixth Amendment to the United States Constitution, to "[s]election of a petit jury from a representative cross-section of the community," we agree with the State's contention on appeal that non-citizens are not members of the "community" at issue. See Cabell v. Chavez-Salido, 454 U.S. 432, 439-40 (1982) (stating that "[a]liens are by definition those outside of this community"). Because a fair cross-section of the community therefore need not include non-citizens, Defendant Lopez's effort to make out a prima facie violation of Bell's "fair cross-section requirement" is misplaced. See Bell, 745 S.W.2d at 860-61 (adopting the factors announced by the United State Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979), the existence of which a defendant must demonstrate in order to prove a "fair cross-section" violation of the Sixth Amendment right to a jury trial).

We hold that Tennessee Code Annotated section 22-1-101's requirement that jurors be United States citizens does not violate the Tennessee Constitution. This issue is without merit.

B. Exclusion of Full Statement to Police

At trial, the State cross-examined the Defendant Lopez using a portion of the statement she made to Det. Bruner, in which she said that Defendant Gomez had not hit her. Defendant Lopez next contends that the trial court erred in preventing her from introducing the entire 125-page statement, instead allowing her to introduce the three pages of the statement surrounding and containing the specific exchange the State used to impeach her on cross-examination.

Tennessee Rule of Evidence 106 provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Because the State referred to Defendant Lopez's statement on cross-examination for the limited purpose of impeachment, and because "on its face Rule 106 refers to the introduction of a portion of a writing by a party to the litigation," State v. Vaughn, 144 S.W.3d 391, 408 (Tenn. Crim. App. 2003) (emphasis in original), the trial court held that Rule 106 was inapplicable to the current case. In Vaughn, however, we acknowledged "that this Court has previously held that a cross-examination in extensive detail about a witness's prior statement is tantamount to an introduction of the statement for Rule 106 purposes." Id. at 408 n. 2 (citingState v. Belser, 945 S.W.2d 776, 788 (Tenn. Crim. App. 1996)).

Even assuming that the State's cross-examination of Defendant Lopez was sufficiently detailed to justify application of Rule 106, we nonetheless conclude that any error was harmless. Tennessee Rule of Appellate Procedure 36(b) states that "a final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process."

Our review of the record and Defendant Lopez's statement to Det. Bruner reveals that the trial court admitted no less of the Defendant Lopez's statement than Rule 106 would have required had it been applied:

[T]he standard for employing Rule 106 is ultimately one of fairness. Accordingly, the most important factor in determining whether Rule 106 should be invoked is whether the jury's accurate understanding of the evidence already admitted requires the admission of this additional information. . . . Thus, our federal courts require that the material sought to be admitted under the substantially identical Federal Rule of Evidence 106 does at least one of the following: (1) explains the already-admitted proof; (2) places the admitted proof in context; (3) avoids misleading the trier of fact; or (4) ensures a fair and impartial understanding of the already-admitted proof.

Id. at 407. The three introduced pages of Defendant Lopez's statement sufficiently establish the context of the questions she was asked regarding whether Defendant Gomez had hit her, and include her answers such that the jury could evaluate whether or not she had mislead Det. Bruner. Nothing more was required to provide the jury with evidence sufficient to evaluate the consistency or inconsistency of her statement with the testimony she had offered about incidents of domestic violence perpetrated by Defendant Gomez. This issue is without merit.

Conclusion

Based on the foregoing authorities and reasoning, we reverse and dismiss Defendant Gomez's Count Five conviction of aggravated child abuse. In all other respects, we affirm the judgments of the trial court.

The sentence for Defendant Gomez for the Count Five Conviction was ordered to be served consecutively to Gomez's other sentence. Because we have concluded that it was not error for the trial court to order consecutive sentences, we remand this case to the trial court solely to give the trial court the opportunity to restructure the remaining sentences such as to order one of the remaining sentences for aggravated child abuse to be served consecutively to the life sentence. Upon remand, this sentencing decision shall be within the discretion of the trial court.