IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2016

STATE OF TENNESSEE v. SARITA ALSTON

Appeal from the Criminal Court for Shelby County

No. 13-00205 Lee V. Coffee, Judge

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No. W2016-00355-CCA-R3-CD - Filed March 9, 2017

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The defendant, Sarita Alston, was sentenced to an effective sentence of twenty-five years 

in confinement by the trial court for the merged convictions of reckless endangerment, 

aggravated child neglect, and aggravated child endangerment. On appeal, the defendant 

argues that the trial court improperly enhanced her aggravated child neglect sentence to 

the maximum within-range sentence of twenty-five years in violation of the purposes and 

principles of the Tennessee Criminal Sentencing Reform Act. Following our review of 

the briefs, the record, and the applicable law, we affirm the twenty-five year sentence.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Jeff Woods, Memphis, Tennessee, for the appellant, Sarita Alston.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural and Factual Background

Trial

On January 17, 2013, the Shelby County grand jury returned an indictment 

charging the defendant with one count of aggravated child abuse, one count of aggravated 
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child neglect, and one count of aggravated child endangerment. The following evidence 

was presented at trial.

Officer Kyle Picciotti, with the Memphis Police Department, responded to 2119 

Pendleton Street based on a 911 ambulance call concerning a child with severe burns. 

When he arrived at the location, he was met by the defendant who was standing outside 

the residence holding the victim, her three-year-old son. According to Officer Picciotti, 

the defendant seemed aggravated by his presence stating, “I didn’t call for you. I called 

for an ambulance.”

When Officer Picciotti inquired as to what happened, the defendant informed him 

that she was in the kitchen cooking and discovered that the victim had urinated on 

himself. She sent him to the bathroom to clean up. Minutes later, the defendant heard 

screaming coming from the bathroom. When she entered the bathroom, the defendant 

found the victim in the bathtub with the water running.

Officer Michael Coburn, a member of the Memphis Police Department’s Crime 

Scene Investigations Unit, was also dispatched to the defendant’s residence. After 

photographing the home, Officer Coburn took temperature readings from the bathtub 

faucet. According to Officer Cobrun, the hot water coming directly from the faucet 

registered on his temperature gauge at 140 degrees Fahrenheit. He then placed the 

“stopper” in the bathtub and allowed the water to collect in the bathtub for nine minutes. 

After nine minutes, there were four and three-fourth inches of water in the bathtub and 

the temperature reading of the water was 115 degrees Fahrenheit. Officer Coburn 

testified he then took measurements of the defendant’s three other children. The oldest 

child, a six-year-old male, measured three feet, nine inches tall. The middle child, a fouryear-old female, was measured at three feet, one inch in height. And, the youngest child, 

almost two-year-old male, was two feet, six inches tall. According to Officer Coburn, 

none of the other children had splash marks or burns on their body.

After processing the defendant’s residence, Officer Coburn went to the hospital to 

photograph and document the victim’s injuries. In addition to photographing the burns 

on the victim’s legs, Officer Coburn also photographed bruising on the victim’s arms and 

shoulders.

Daphnie Swift, a case manager with Tennessee Department of Children Services, 

received a referral concerning the victim and allegations of abuse. During her initial trip 

to the hospital to visit the victim, she was unable to speak with him because he was 

heavily sedated. She was, however, able to speak with the defendant. According to Ms. 

Swift, the defendant informed her that she was in the kitchen cooking when she noticed 
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what smelled like one of the children “had used the bathroom on themselves.” When she 

turned around it was the victim.

The defendant directed the victim to go to the bathroom and wait for her. The 

defendant stayed in the kitchen for five minutes until she heard a “distressed cry.” As she 

headed to the bathroom, the victim met the defendant in the hallway. According to Ms. 

Swift, the defendant stated that the victim was “coming down the hall with all the skin on 

his legs burned and skin in his hands.” When Ms. Swift asked the defendant how the 

victim got burned, the defendant stated her youngest child, who was just a few months 

shy of two years old at the time, must have turned on the water, and the victim must have 

undressed himself and climbed into the bathtub.

Memphis Police Officer Sergeant James Byars, who is assigned to the Child 

Abuse Special Victim’s Unit, made contact with the defendant by phone on June 5. 

When Sgt. Byars inquired about the victim’s injuries, the defendant stated, “Someone had 

put the stopper in the tub. Filled it with hot water and the victim was burned.” During 

that conversation, Sgt. Byars made arrangements to meet the defendant at the hospital the 

next day.

Sgt. Byars recorded his first conversation with the defendant on the morning of 

June 6. During their conversation, the defendant claimed that the victim urinated on 

himself while she was preparing dinner and talking to her son’s father on the phone. She 

instructed the victim to go to the bathroom, sit on the toilet, and wait for her. About five 

minutes later, the defendant heard the victim crying. As she walked to the bathroom, she

was met by the victim in the hallway and noticed he had burns on both legs. Both the 

victim and his older brother told the defendant that the youngest brother had turned on

the bathtub faucet.

The defendant gave a second statement to Sgt. Byars on the evening of June 6. 

Again, the defendant stated that she sent the victim to the bathroom to sit on the toilet and 

wait for her. However, during this statement, she claimed that when she entered the 

bathroom the water was still running and both of her other boys were in the bathroom. 

The defendant also admitted that the victim did not have any other burns on his body and 

neither of the other children had burns. When asked if the victim is able to get into the 

bathtub by himself, the defendant said he was and explained that “he will put one foot in 

and then the other one.”

The defendant gave a third statement to Sgt. Byars on June 7. In her third 

statement, the defendant again claimed 
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I said somebody ran some hot water and he got scalded. I said I was in the 

kitchen preparing dinner and I heard [the victim] give a distress call out to 

me. I walked toward the restroom and he met me in the hallway with his 

legs scald[ed]. He had skin in his hand, and it was dripping off of his legs. 

There was skin floating in the water in the bathtub.

In her third statement, the defendant also denied ever telling the officers that she initially 

found the victim sitting in the bathtub.

Dr. Karen Larkin, an expert in general pediatric medicine and child abuse 

pediatrics, testified she was asked to consult in the victim’s treatment. According to Dr. 

Larkin, the victim suffered second-degree burns that encompassed his lower extremities. 

He also had numerous contusions and bruising on his abdomen, thighs, back, arms, and 

shoulders. Dr. Larkin testified that the victim’s burns were identical on each leg and 

consistent with being placed in hot water, rather than someone entering the bathtub one 

foot at a time. According to Dr. Larkin, the victim’s injuries appeared to be “immersion 

burns.” Based on the degree to which his feet and legs were burned, Dr. Larkin testified 

that he would not have been able to walk.

Dr. Larkin also testified that “potty training” is a very high risk time for abuse 

because parents get frustrated. Burning is a common form of abuse with “potty training 

because the [child] is being cleaned by an angry and frustrated parent.” According to Dr. 

Larkin, the bruising on the victim’s body is consistent with a parent holding the child in 

the hot water and the child is struggling to get out. In order to receive the wounds the 

victim suffered, the water would have already been in the bathtub and then the victim 

would have been placed in the tub.

The defendant did not testify but did call her mother, Shirley Randolph, as a 

witness. Ms. Randolph testified that she was talking to the defendant on the phone when 

the defendant said she would have to call back because the baby was crying. When the 

defendant did call Ms. Randolph back, she told her that the victim “hurt his legs real 

bad.” Ms. Randolph also testified that when the victim’s youngest brother came to the 

hospital room the victim started screaming “no, no, no.”

At the conclusion of the trial, the jury found the defendant guilty of reckless 

endangerment as a lesser-included offense of aggravated child abuse, aggravated child 

neglect, and aggravated child endangerment.

Sentencing Hearing
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During the sentencing hearing, the State did not present any witnesses and relied 

solely on the proof presented at trial, the defendant’s pre-sentence report, and argument. 

The defendant also decided not to present any testimony. The defendant, however, did 

submit, for the trial court’s consideration, letters of support from family members and 

several certificates from courses/programs she completed while incarcerated. After 

considering the evidence presented at trial, the parties’ submissions at the sentencing 

hearing, and the applicable sentencing principles and guidelines, the trial court found the 

defendant to be a Range I, standard offender, and sentenced the defendant to eleven 

months and twenty-nine days for reckless endangerment, twenty-five years for 

aggravated child neglect, and twenty-two years for aggravated child endangerment. The 

trial court then merged Counts 1 and 3 into Count 2 for an effective sentence of twentyfive years with the Tennessee Department of Correction.

In making its sentencing determination, the trial court found, as an enhancement 

factor, the defendant has a previous history of criminal convictions or criminal behavior, 

in addition to those necessary to establish the appropriate range. In support of this 

conclusion, the trial court relied on the defendant’s prior misdemeanor convictions for 

several traffic offenses, her numerous prior arrests for felony offenses, and the proof at 

trial, including statements contained in the Department of Children Services’ report,

indicating prior abuse of the victim. 

The trial court also found, as an applicable enhancement factor, that the victim’s 

age made him particularly vulnerable in that he was unable resist or call for help. Finally, 

the trial court found the defendant’s sentences for reckless endangerment and aggravated 

child neglect should be enhanced based on her abuse of a position of private trust.

In reviewing potential mitigation evidence, the trial court gave some weight to the 

letters of support from the defendant’s family members. Specifically, the trial court 

noted “it is not inconsistent with a person being caring, loving and giving, and still 

causing injuries to her child.” The trial court also considered as mitigation the fact that 

the defendant has “completed many courses and acquired many certificates while she has 

been in the Shelby County jail.”

Analysis

The sole issue raised by the defendant on appeal is her claim that the trial court 

abused its discretion by imposing the maximum sentence of twenty-five years for her 

conviction of aggravated child neglect. She argues that the trial court did not place 

sufficient weight on the mitigation proof offered, placed undue weight on her prior 

misdemeanor convictions, and erroneously found the victim to be particularly vulnerable. 

The State argues the trial court did not abuse its discretion in sentencing the defendant. 
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After reviewing the record, submissions of the parties, and applicable law, we affirm the 

judgment of the trial court.

In determining an appropriate sentence, a trial court must consider the following 

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the 

presentence report; (3) the principles of sentencing and arguments as to sentencing 

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) 

evidence and information offered by the parties on mitigating and enhancement factors; 

(6) any statistical information provided by the administrative office of the courts as to 

sentencing practices for similar offenses in Tennessee; (7) any statement the defendant 

makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed 

should be the least severe measure necessary to achieve the purposes for which the 

sentence is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory 

presumptive minimum sentence and rendered enhancement factors advisory only. See

Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain 

“advisory sentencing guidelines” that are not binding on the trial court; however, the trial 

court must nonetheless consider them. See id. § 40-35-210(c). Although the application 

of the factors is advisory, a court shall consider “[e]vidence and information offered by 

the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-

114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “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.” Id. § 40-35-210(e). The 

weighing of mitigating and enhancing factors is left to the sound discretion of the trial 

court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving 

applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-

9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995) (citation 

omitted). The trial court’s weighing of the various enhancement and mitigating factors is 

not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345

(citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 

(Tenn. Crim. App. July 6, 2007), aff'd as corrected, 271 S.W.3d 90 (Tenn. 2008)).

{ "pageset": "S1c

When an accused challenges the length and manner of service of a 

sentence, this Court reviews the trial court’s sentencing determination under an abuse of 

discretion standard accompanied by a presumption of reasonableness. State v. Bise, 380 

S.W.3d 682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating 

factor in passing sentence, said error will not remove the presumption of reasonableness 

from its sentencing determination. Bise, 380 S.W.3d at 709. This Court will uphold the 
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trial court’s sentencing decision “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 709-10. Moreover, under such circumstances, 

appellate courts may not disturb the sentence even if we had preferred a different result. 

See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial 

court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 

40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

Tennessee Code Annotated section 40-35-114(4) provides that a sentence may be 

enhanced when “[a] victim of the offense was particularly vulnerable because of age or 

physical or mental disability.” Whether a victim is “particularly vulnerable” for purposes 

of Tennessee Code Annotated section 40-35-114(4) is “a factual issue to be resolved by 

the trier of fact on a case by case basis.” State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1998);

State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). Use of the “particularly vulnerable” 

enhancement factor is appropriate in this case if the facts show that the vulnerability of 

the victim had some bearing on, or some logical connection to, “an inability to resist the 

crime, summon help, or testify at a later date.” Poole, 945 S.W.2d at 96 (defining 

“vulnerability” under § 40-35-114(4)); see also State v. Kissinger, 922 S.W.2d 482, 487 

(Tenn. 1996); State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993).

The record contains sufficient evidence in addition to the age of the victim to 

support the Tennessee Code Annotated section 40-35-114(4) enhancement factor. In 

applying this enhancement factor to the defendant’s sentence, the trial court concluded 

that the victim, a three-year-old child, was particularly vulnerable because “this child was 

unable to call for help, was unable to resist what his mother did to him . . . .” Evidence 

showed that the victim was placed and held in the scalding hot water. This conclusion is 

not only supported by the victim’s second-degree immersion burns, but also the bruising 

found on the victim’s arms and shoulders. This evidence supports the trial court’s 

reliance on this enhancement factor. Accordingly, the defendant has failed to show an 

abuse of discretion on the part of the trial court and is not entitled to relief.

The defendant next contends the trial court erred by giving too much weight to 

her previous traffic-related misdemeanor convictions and by not giving enough weight to 

the mitigation proof offered by the defendant in the form of letters of support from her 

family members and certificates of achievement from numerous classes she completed 

while in jail. As previously stated, enhancement and mitigating factors are advisory only. 

See Tenn. Code Ann. § 40-35-114 (2014); see also Bise, 380 S.W.3d at 699 n.33, 704; 

Carter, 254 S.W.3d at 343. This Court is “bound by [the] trial court’s decision as to the 

length of the sentence imposed so long as it is imposed in a manner consistent with the 

purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Carter, 
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254 S.W.3d at 346. We conclude that the defendant’s within-range sentence is consistent 

with the purposes set out in the Sentencing Act and that it was within the trial court’s

broad discretion to enhance the defendant’s sentence for her prior misdemeanor 

convictions and not to afford much weight to her letters of support and certificates of 

achievement. Thus, the defendant is not entitled to relief on this issue.

Finally, the defendant appears to argue that the trial court abused its discretion in

reviewing the nature and characteristics of the criminal conduct involved. The defendant 

argues that by finding her guilty of the lesser-included offense of reckless endangerment, 

rather than aggravated child abuse, the jury found she did not act intentionally, so the trial 

court’s conclusion that the defendant caused the victim’s burns is misplaced and 

improper. This Court has recognized, however, that a trial judge may find evidence of 

criminal behavior even though there has been no conviction. State v. Massey, 757 

S.W.2d 350, 352 (Tenn. Crim. App. 1988). A trial court may even apply an enhancement 

factor based on facts underlying an offense for which the defendant has been acquitted, 

so long as the facts have been established in the record by a preponderance of the 

evidence. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

Here, the evidence produced at trial supports the trial court’s conclusion that the 

defendant placed and held the victim in the scalding hot water. In support of his 

conclusion, the trial court noted Dr. Larkin testified that the “child had to be immersed in 

the water, had to be held down, and in her opinion, he was, in fact, forcibly held down by 

his shoulders for a number of seconds . . . .” The court then concluded, “I don’t know 

how you take your child, a three-year-old son, stick him in boiling hot water, and forcibly 

hold him down to the extent that this child has suffered burns that will be with him and 

injuries that will be with him the rest of his life . . . .”

Based on the applicable law and the proof presented at trial, the trial court did not 

abuse its discretion when, in evaluating the nature and characteristics of the criminal 

conduct, it concluded that the defendant was responsible for the severity of the victim’s 

injuries. Accordingly, the defendant is not entitled to relief on this claim.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court.

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J. ROSS DYER, JUDGE