State v. Brunelle, No. E2006-00467-CCA-R3-CD (Tenn. Crim. App. 7/13/2007)

Decision Date13 July 2007
Docket NumberNo. E2006-00467-CCA-R3-CD.,E2006-00467-CCA-R3-CD.
CourtTennessee Court of Criminal Appeals

Greg W. Eichelman, Morristown, Tennessee, for the Appellant, Misty Brunelle.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; C. Berkley Bell, District Attorney General; Cecil Mills and Amber Depriest, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and J.C. McLin, JJ., joined.



A Greene County Jury convicted the Defendant, Misty Brunelle, of three counts of aggravated child abuse, and the trial court sentenced her to an effective sentence of twenty-five years in the Department of Correction. On appeal, she alleges: (1) there is insufficient evidence to support any conviction for aggravated child abuse; (2) there is insufficient evidence to support her three distinct aggravated child abuse convictions; (3) the trial court erred in not dismissing the indictments; (4) the trial court erred in allowing all the aggravated child abuse charges to be tried together; (5) the trial court erred in allowing the State to use the Defendant's statements in its case-in-chief; (6) the trial court erred in refusing to instruct the jury on the charge of aggravated assault by failure to protect; (7) the trial court erred in not granting a mistrial after the jury improperly focused on extraneous issues; and (8) the trial court erred in sentencing the Defendant. After a through review of the record and applicable law, we affirm the judgments of the trial court.

I. Facts

The facts making up the basis for the Defendant's convictions as presented at trial are as follows: Judy Shuler, a registered nurse at the Takoma Adventist Hospital, testified that the victim was presented to her at the hospital by the Defendant and the victim's father, and she performed the initial assessment. The Defendant told Shuler that the victim had been crying all day and that the victim's leg was swollen, and she did not know why. Shuler asked if the victim had fallen off the couch or her seat, and the Defendant replied, "no." When Shuler removed the blanket that the victim had been wrapped in, she noticed the baby's arm was limp, and the baby cried when her arm was touched. Additionally, Shuler noticed that the child's leg was swollen to two to three times its normal size. She did not leave the baby alone with the Defendant, and proceeded to aid the child in this "orthopedic emergency."

Dr. Susan O'Brien testified that she was the emergency room staff physician at Takoma Adventist Hospital, and she examined the victim in the emergency room. During her examination, she noticed the victim's right arm moved appropriately, but she guarded her left side. Both her left arm and left leg were not moving appropriately; they were essentially stiff. At that age, a crying child would normally move both arms and both legs. The victim appeared to be in pain any time her left arm or left leg were examined.

Dr. O'Brien testified that the victim was then x-rayed, which uncovered a fracture of the left humerus — the long bone in the arm, a fracture of the left radius — the bone under the thumb, and a fracture of the left femur — the thigh bone. She explained the fractures to the Defendant, who asked how those injuries could have occurred. Dr. O'Brien responded that she believed it would take a "lot of force for those to occur." The Defendant began to cry and walked back to the room where the victim was located. Dr. O'Brien notified the police, the Children and Family Services, and the pediatrician on call.

On cross-examination, Dr. O'Brien testified that the victim cried during the entire examination. The Defendant told Dr. O'Brien that the victim had diabetes, but Dr. O'Brien explained to the Defendant that diabetes would have nothing to do with trauma. The Defendant and the victim's father were questioned about the child's medical history. Although the victim's father, Jason Brunelle, was present during the hospital visit, the Defendant primarily answered the doctor's questions and examined the x-rays.

On re-direct examination, Dr. O'Brien testified that she was concerned about the Defendant's behavior that night, mainly because the Defendant could not give answers to the doctor's questions. Additionally, the Defendant could not explain how the child sustained these injuries. On re-cross examination, Dr. O'Brien stated that Jason Brunelle provided no information whatsoever.

Glenn Miller, the owner of a Greeneville, Tennessee, Budget truck rental franchise, testified that he received a truck on January 13, 2003, that had been rented on January 10, 2003.

Jason Brunelle testified that the Defendant was his ex-wife. Their child, the victim, was born on October 22, 2002, a healthy baby with no medical problems. The three moved to Vermont around Thanksgiving 2002 to live with his mother. Approximately a week after they moved to Vermont, the victim was taken for a check-up, which revealed no problems. Around that same time, there was a dispute between the couple and Jason Brunelle's mother, which forced the three to move out. They lived with another friend of Jason Brunelle's, Diana Hayes, in Vermont for between a week and two weeks. Then, on January 13, 2003, the three moved back to Tennessee, and into a house where Tammy Pitt, Randy Pitt, and Tommy Arwood lived together. Tammy Pitt is the Defendant's mother. Tommy Arwood is Tammy Pitt's boyfriend. Randy Pitt is the Defendant's brother.

Jason Brunelle examined a previously entered Budget truck rental receipt, and he stated that it was accurate, and it showed they left Vermont on January 10, 2003, and arrived in Tennessee on January 13, 2003. Jason Brunelle stated that the victim did not show any signs of injury prior to January 13, 2003. The house had three bedrooms and approximately seven to eight total rooms, and the victim would primarily spend her time in Jason Brunelle and the Defendant's bedroom. Jason Brunelle stated that he had never had a broken bone.

Jason Brunelle further testified that the victim's crying prompted him and the Defendant to take her to the hospital. She had been crying this way for about a week, and this crying was different from normal crying. Additionally, the victim was not as active as she had previously been. Jason Brunelle stated that he had never seen anyone injure the victim, he never hurt the victim, and he never rolled over onto the victim. The Defendant never told him what happened to the victim.

On cross-examination, Jason Brunelle testified that the house in Tennessee was a wooden house, which no one, save the Defendant's grandmother, would visit. As one enters the back door of the house, there is a storage room to one side, then a large living area, a bathroom at the end of a hall, and there are three bedrooms in a row. He further stated that the trip from Vermont took about seventeen hours, and the victim sat in a child seat. The victim had been to the doctor in Vermont due to diarrhea, and the Defendant got the medicine for her. Jason Brunelle then admitted that he and the Defendant had an emotional marriage, but he denied ever hitting, threatening, or scaring her. He admitted that he had a temper, but he denied that he had ever held a knife to the Defendant's throat. Although Jason Brunelle wanted a son, he was also happy to find out he and the Defendant were having a girl. At one point, he told the people at the hospital that he had brittle bone disease in his family, but he then found out that was not true. He also told the doctor that there was a history of multiple sclerosis in his family. Jason Brunelle further testified that he was not alone with the victim while in Tennessee.

Donna Myers, formerly with the Department of Children's Services, testified that she spoke with the Defendant on January 28, 2003, at the Takoma Adventist Hospital. The Defendant stated she did not know how the victim had sustained the broken bones. The Defendant stated that the baby was never left alone with anyone other than herself or the father. Additionally, the Defendant did not recall if the victim had rolled off something. The Defendant stated that the victim began crying the day before she was brought to the hospital. When Myers stated that she would have to take the baby until it could be determined what happened, the Defendant "cussed [her] and walked out of the room." The Defendant called Myers the next day, and she stated that when she arrived home the previous night, she told those at the house what had happened. She stated that Tommy Arwood "got up, said he would never hurt the baby, and left in his night clothes, and they hadn't seen him since." Then, on January 31, 2003, the Defendant again called Myers, and she stated she knew for a fact how the victim's bones were broken. She stated that Jason Brunelle had fallen asleep and rolled over on the baby. This was the first time Myers had heard that explanation.

On cross-examination, Myers testified that Jason Brunelle never called to offer an explanation. Both the Defendant and Jason Brunelle stated they brought the victim in because she had been crying for a day. When Myers stated that she would have to keep the victim, the Defendant stormed out of the room while Jason Brunelle sat crying in the corner.

Investigator Teddy Collingsworth testified that he was contacted by Donna Myers on January 29, 2003, the day after the victim was presented to the Takoma Adventist Hospital. He set up a meeting with the Defendant, Jason Brunelle, and Tammy Pitt, the Defendant's mother. Investigator...

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