### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptem

ber 17, 200 3
STATE O F TENN ESSEE v. DELSIE LUCILL E SART AIN
Direct Appeal from the Circuit Court for Bedford County

No. 14954 Charles Lee, Judge

No. M2002-02617-CCA-R3-CD - F iled December 23, 2003

The Appellan

t, Delsi e Lucille Sartain, was conv icted by a jury for the r eckless aggr avated a ssault of a five-month-old baby , which resulted in permanent injuries. Following a sentencing hearing, the trial court imposed a sentence of three y ear s and two months incarceration as a rang e I standard offender. S artain appeal s the s enten cing de cisio n, argu ing th at the trial court erred b y orderin g a sentence of total confinement rather than theless restrictive alternative of probation. After re view, we find no error and affirm the judg ment of the Bedford County Circuit Court.
Tenn. R. App.P. 3; Judg ment of the Circui t Court Affirmed.

D AV ID G. H AYES , J., delivered the opinion of the court, in which J OSEP H M. T IPTON and J OHN E VERE TT W IL LI AMS , JJ., joined.

Donna Leigh Har

grove, District Public Defender; Curtis H. Gann, Assistant Public Defender, Shelbyville, Tennessee, f

or the Appellant, Delsie Lucille Sarta in.

Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor Genera l; Christine

M. Lapp s, Assistant

Attorney Genera l; William Mic

hael McCown, D istrict Attorney Gene ral; and Michael Randles, Assistant District Attorney G eneral, for the Appellee, State of Tenne ssee.

OPINION

Factua l Background

Tina Bailiff employe d the Appellan t to care for her two small

children, twenty- two-monthold Meaghan and five-month-old Nathan, while she worked at a local factory . This arrangement began on Monday, July

9, 2001. On Friday , July 13 th , Mrs. Ba iliff lef t the child

ren with t

h e Appellant at appro ximately

2:15 p.m. Since Mrs. Bailiff was working twelve-hour shifts on F riday and Saturday, the

two ha d agreed that t he App ellan t woul d keep the ch ildre n unt il Su nday morn ing. Between 10:00 and 11:00 a.m. on Saturday morning , July 14 th , Mrs. Bailiff called the Appella

nt to-2-

check on the children. The Appellant told her that both Nathan and Meag han were fine but sh e needed a can of formula f

or Nath an. Mr s. Bailiff went to the Appellant’s home with a can of formula between 2:00 and 2:15 p.m. Both children were f ine. Mrs. Bailiff then went to work. At approximately 10:00 p.m., the Appellant phoned Mrs. Ba iliff at work and

informed her “tha t somethi ng was w

rong wi th Nathan ; he wasn ’t brea thing exa ctly right.” Upon arr

ival, Mrs. Bailiff found that Nathan could not hold his head up, “hold his ey es open,” and wa s “gaspi ng for air.” The Appellant claimed that Meaghan hit Nathan w ith atoy and fell on his chest. She stated that Nathan later

became ill while eating some carrots. Mrs. B ailiff immediately took Nathan to the Bedford County Hospital, where he was “L ifeFlighted” to Vanderbilt Hospital in Nashville. At Vander bilt, Nathan exhibited

injuries consistent with “Shaken Baby Syndrome.” He suf

fered from “subdural hematomas, frontoparietal contusions, retinal hemorrhag es, and seizures. He was placed
ona respira tor. L ater he

was plac ed in a dr

ug induc ed coma

to contro l his seizur

es.” Ac cording

to Dr. Mary Tay

lor, a Vanderbilt pediatric critical care unit physician, Nathan’ s symptoms indicated that he had sustained a

life threatening brain injury . Nathan remained hospitalized for three and onehalf weeks at Vanderbilt. During questioni

ng by the Bed ford Coun

ty Sheriff ’s Depa rtment, the Appella

nt admitte d to shaking the five-m o nth-old baby. She explained that, after Meaghan fell on Nathan, “she wa s scared, and his eyeswere closed, and shewas afraid he was hurt and she shook him until his ey es opened.” She also claimed that she did not recall how hard

she shook him. The Appellant also made a written statemen t, in which she admits that she “shook him until he opened h is ey es, at the same time calling his name.”
On Augu st

20, 2001, the Appellan

t was indicted for a

ggra vated ch ild abuse . At trial, Mrs. Bailiff testified that

Nathan was still receiving treatment and that she ha d to quit her

job to care for him. She also testified that Nathan, who was then near ly a year and

one-hal f old, re ceived phys ical, occupa tional, and speech

therapy f our days a week but still could not walk, talk, or feed himself. She stated that, in order to “get around,” Nathan “takes his left arm and he pulls himself. He scoots on his behind and he pulls himself across the floor.” According to Mrs. Ba

iliff, “t he righ t side of h is face kind of droops. You can tell he has had a small stroke.” The Appellant testified on her own behalf at trial. Following theconclusion of proof, the jury found the Appellant guilty of the lesser included offense of reck less ag grava

ted assa ult.

A sent encing hearing was he ld September 16, 2002. The presentence report re flected on e felony theft conviction in

1992, which involved the Appellant stealing pencils from her employer

. Ms. Laura Prossor, a pre sentence officer with the Boar d of Probation a n d Parole, testifie d that, during her investigation, she learned that the Department of Child Protective Services had attempted to stop the Appellant from “baby sitting because of the n umber of children she had.” Mrs. Bailiff again testified about the extent of N athan’s injuries. Nathan, now ninet een month s old, was

still
un dergoing

medical c are. She

stated tha

t he conti nued to ha

ve seizur es and wa s possibly

blind in his right eye. Nathan was still unable to walk, talk, and feed himself. According to Mrs. Bailiff, he1 We note that t he Appellant does not request review of t he denial of any other form of alt ernative sent encing. She a rgues o nly that she is entitled to full prob ation.
-3- was dev e lopmenta

lly “ about the

age of an 8 month o ld child.”

Finally , Mrs. Ba iliff test ified as t o Nathan’ s unpaid me dical bill s and othe r costs dir ectly resulting from thes e injurie s.
The Appellan

t, wh o had recently

undergone triple by

pass surgery , also testified at the sentencinghearing. She testified to her numerous medical conditions. She also expressed r emorse and asserted that she did not mean to harm Nathan.

After consider ation of the applic able enhanceme nt and mitig ating f

actors, the trial court imposed a senten ce of thr ee y ears an d two months

for the c lass D f

el on y. The Appe llant’s r

equest for alternative senten cing wa s denied, and she w as order ed to ser ve her e ntire sen tence in confinement in the Department of Correction. This appeal followe d.

ANALYSIS

Onappeal, the Appellant argues that the trial court erroneously

denied full probation. 1 When the sentencing court properly considers the relevant

sentenc ing con siderati ons, this c ourt cond ucts
a de novo review with the presumption that the determinations made by the trial court

are cor rect. Tenn. Code Ann. § 40-35-4 01(d) (2 003); State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ). In this case, the presumption of correctness is applied as we find the trial court considered

the sentencing principles and relevant facts.

Becau se the Appe llant was convicte d of a cla ss D felony, she is entitled to the presumption that she is a f avorabl e candid

ate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (2003). However, a defen

dant has t he burde n of esta blish ing his suit ability for full probation, eve n if the defendant is entitled to the statutory presumption of alterna tive sentencing. Id. ; State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).

To meet the burden of establishing suitability for total pro batio n, an app ellant mus t demonstr ate that probation will "subserve the ends of justice and the be st

interest of both the

public and the defendant ." State v. Bingham , 910 S.W.2d 448, 456 ( Tenn. Cri m. App. 1995), overruled on other grounds, State v. Hooper , 29 S.W.3 d 1, 9-10 ( Tenn. 2000). When deciding suitability f or probation, altho ugh not contr olli ng, th e sent encin g cou rt should use the following criteria: (1) the nature and

circum stances of the criminal conduct involved, Tennessee Code Annota ted § 40-35- 210(b)(4) (2003 ); (2) the po tenti al or l ack of p otent ial fo r rehab ilit ation , incl udin g t he ri sk that during the period

of probation a defendant will commit another crime, Tennessee Code Annotated § 40-35-10 3(5) (20 03); (3)whether a senten ce of fu ll p robati on would unduly deprec iate the seriousness of the offen se, Tenne ssee Code Annotated § 40-35-103(1)(B); and ( 4) whether a sentence other tha

n full pro bation wo uld provid

e an eff ective d eterre nt to others like ly to

commit similar crimes, Te nnessee Cod e Annotated § 40-35-103(1)(B). Bingham , 910 S.W.2d at 456. Denial of probation may be ba sed solely upon the circ umstances of the offen se wh en th ey a re of such a-4-

nature as to outweigh all other factors favoring probation. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Upon de novo review, we find the facts and circumstances of this case to be such that probationis not appropriate. While given little weight by the trial court, the A

ppellant does have a prior theft conviction. The injuries arose while the Appellant was employ ed as a caretaker

for the infant, thus, viola

ting a tr ust relat ionship. O f signif

icant impo rtance, the Appellant’s conduct resulted in serious and permanent impairment. As described at trial by Dr

. William Cooper, a pediatrician

at Vanderbilt, “S haken Baby Sy ndrome” is a form of child abuse that occurs when
someone
will shake the baby

very violently

– not the type of – like

you would shake a ba

by on your knee, t his is viole

nt back a nd forth. . . . Since

the injuri es includ

e – beca use when the baby’s he ad shakes back and forth so violently , the skull i s hard, but the brain is soft, es pecially in babies because their blood

vessels aren’t fully

developed, and their brain tissue isn’t full y f ormed y et. As the brain mov es back a

nd forth at a very rapid speed, and blood

vessels are torn both within the brain and also in the back of the ey es.
Nathan suffered permanent brain damag e and, at the time of the sentencing hearing over a yea r after being shaken by th e Appella nt, was still suffe

ring fr om seizure s. Natha

n was dev elopment

ally delayed and possibly blind in his right ey e. Despite the Appellant’s genuine remorse, the trial cou

rt, exercising its discretion, fo und that the Appellant was not suitable for probation. The victim was
a defenseless five-month-old baby . We agree and find that the circumstanc es of the offense are of sucha nature as to outweigh all factors fa voring probation. See State v. Grady Stanley

Ingram , No. 03C01-9612-CR-00464 (Tenn. Crim. App. at Knoxville, Jan. 8, 1998).

CONCLUSION

For the above stated reasons, we conclude that the A

ppellant has faile d to estab lish

that her sentence of total confinement is improper. Accordingly , the sentencing decision of the Bedford County Circuit Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE