        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 14, 2014 Session

            STATE OF TENNESSEE v. JOSEPH LEON KNOWLES

                    Appeal from the Circuit Court for Giles County
                        No. 15583     Stella Hargove, Judge


                 No. M2013-01653-CCA-R3-CD - Filed April 23, 2014



The Defendant, Joseph Leon Knowles, pleaded guilty pursuant to a plea agreement to attempt
to commit aggravated child abuse of a child under six years old, a Class B felony, with the
sentence to be determined by the trial court. See T.C.A. § 39-15-402 (2010). The trial court
sentenced the Defendant as a Range I, standard offender to twelve years’ confinement. On
appeal, the Defendant contends that the trial court erred during sentencing by failing to apply
certain mitigating factors relative to remorse, assisting the police, and his not having a
substantial intent to violate the law and by denying him alternative sentencing. We affirm
the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

John S. Colley, III (on appeal), Columbia, Tennessee, and Daniel Freemon (at the guilty plea
and sentencing hearings), Lawrenceburg, Tennessee, for the appellant, Joseph Leon
Knowles.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; Michael T. Bottoms, District Attorney General; and Beverly White,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                           OPINION

      This case relates to injuries sustained by the Defendant’s then-girlfriend’s twenty-
month-old daughter. According to the State’s recitation of the facts at the guilty plea hearing,

       Mr. Knowles was the boyfriend of the victim’s mother. . . . He was babysitting
       . . . the child. Through his statement and the investigation that they found, he
       was taking care of the child.

              The child . . . was crying. He . . . first told the Officers that she . . . had
       slipped and fallen, and then he . . . said that he . . . slapped her . . . and she hit
       the floor with her head. She would go in and out of consciousness. They did
       take her to Hillside Hospital, where they took her to Vanderbilt.

              [The] Vanderbilt . . . eyecam [showed] . . . retinal bleeding. They found
       other bruises on the child . . . in her ears [and] . . . on her face.

              And in his statement to Investigator Shane Hunter, he had admitted
       slapping her up – basically, slapping her upside the head in which – and
       around the ears. And that he had grabbed her around her mouth and turned her
       head to him to get her attention in the past.

The Defendant told the court that he was sorry for his actions, that he “didn’t mean to,” and
that he had “no intention to hurt the child.”

        At the sentencing hearing, the presentence report was received as an exhibit. The
report showed that the Defendant had no previous convictions. It showed that the Defendant
provided a written statement, which stated,

       I moved in with [the victim’s mother] about two months before the incident.
       Her daughter, [A.H.] resided with us. [A.H.] was a very active and normal
       child. My two year old son also resided with us on the day this happened[.
       A.H.] seemed very upset and crying a lot from the time she woke up that
       morning. I could not get her to calm down. I tried to comfort her and tried
       using more appropriate discipline but she continued to cry and act out. Finally,
       I lost control of myself and struck her with the back of my hand in anger. This
       caused her to fall backwards on the tile floor striking her head. When I saw
       that [A.H.] was injured I immediately called 911.




                                                -2-
              As a result of my actions[,] I have lost custody of my son. Not a day
       goes by that I don’t reflect on and regret my actions which caused these
       injuries to [A.H.]

       The presentence report included a narrative, which stated,

               Mr. Knowles contacted E-911 on October 8, 2011, advising that the
       small child . . . was unconscious and non-responsive. EMS arrived on the
       scene and air lifted the child to Vanderbilt Hospital. EMS Supervisor Dustin
       Blade advised Deputy Gulley that the child had multiple bruises throughout her
       body. I was contacted of the situation and responded to Vanderbilt Hospital.
       I was advised while en-route to Vanderbilt by [a] social worker stating that
       they requested my assistance. I was advised . . . that the child had signs of
       ongoing child abuse. The child had bleeding in both retina[]s, subdural
       hematoma, bruising throughout her body including both ears, . . . forehead,
       both sides of her cheeks, thighs, arms, and legs. Vanderbilt diagnosed the
       child as being a victim of ongoing child abuse. . . . Mr. Knowles admitted to
       having hit the child in the head. Mr. Knowles stated that the child was crying
       and he was attempting to feed the child[. H]e went to back hand her and the
       child by this account had gotten too close and slipped on the floor. Mr.
       Knowles stated that the child was ‘knocked unconscious.’ Mr. Knowles called
       his girlfriend who advised him to contact 911. Mr. Knowles admitted that he
       had an anger issue and this was not the first time as to hitting the child. Mr.
       Knowles was questioned about the bruising about her face. Mr. Knowles
       admitted to grabbing the child about the mouth area and squeezing her face.
       Mr. Knowles was questioned about the bruising inside of the child’s ears. Mr.
       Knowles stated that he had hit the child in the past by back handing her about
       the ears. Mr. Knowles repeatedly stated that he was not a ‘child abuser’; he
       was attempting to discipline the child. [The child] is twenty months old.

       The presentence report showed that the Defendant had a high school education and
had a gas, metal, and arc welding certification. The Defendant reported having good physical
and mental health and denied having substance abuse problems. The Defendant had a four-
year-old son, paid child support monthly, and paid back child support due to his time in
confinement before being released on bond in this case and due to a work-related injury. He
was employed as a welder and lived with and received financial support from his parents.

        The victim’s mother submitted a victim impact statement to the trial court. She said
the victim was terrified of men and had nightmares for months in which she appeared to
relive the incident. She said the victim had aggression issues and would require counseling

                                             -3-
when she was old enough to talk about the incident. The victim’s maternal grandmother
submitted a victim impact statement in which she discussed her dissatisfaction with the
criminal justice system and her fear that the Defendant would receive a lenient sentence. She
discussed the victim’s fear of men and the impact of that fear on the victim’s relationship
with her grandfather. The victim’s maternal aunt submitted a victim impact statement in
which she discussed how she learned of the victim’s injuries and her fear of whether the
victim would survive. She requested the Defendant pay restitution because the victim would
probably have “memory, muscle, emotional, and/or bone and joint problems” as a result of
her injuries. The victim’s maternal grandfather submitted a victim impact statement in which
he discussed learning of the victim’s injuries and his fear she would not survive. He said it
took a couple of weeks after the victim’s release from the hospital for her to trust him again.
He discussed his dissatisfaction with the criminal justice system and the State’s permitting
the Defendant to plead guilty to a Class B felony rather than a Class A felony. Each family
member requested the maximum sentence.

       Expert medical testimony from a previous hearing was received as an exhibit. At the
previous hearing, Dr. Curtis Wushensky, a neuroradiologist, testified that he interpreted the
victim’s MRI. He found a subdural hematoma between the victim’s skull and brain, which
centered around the back of the brain. He concluded that the back of the victim’s brain had
a contusion. He said that the injury was located on the cortex of the parietal lobes and that
he found a small amount of blood between the lobes. He concluded that some form of
trauma caused the injury.

        Dr. Wushensky testified that the victim’s injuries were about seven to ten days old
when he reviewed the test results, although he did not recall when the MRI was performed
or when he interpreted the results. He did not observe any life-threatening injuries, broken
bones, or fractured bones. He did not know if the victim lost consciousness or suffered
extreme pain. He denied the victim’s injuries might cause disfigurement. He thought,
though, that the victim’s having some permanent deficit was a “probable outcome,” although
he was unaware of any permanent deficit at the time of his testimony. He stated that usually
a brain injury consistent with the victim’s injury caused scarring that resulted in a permanent
injury. He said that the victim’s injury was near the primary visual center and that he
believed her eyesight would be affected. He said it was possible the trauma impacted the
front of the victim’s head but injured the back of her skull. He concluded that the trauma
came from the front or the back of the victim’s head.

       On cross-examination, Dr. Wushensky testified that the victim’s injury could have
been accidental, which he explained might include falling six to eight feet onto a concrete
floor. He said, though, the injury was not caused by the victim’s running and falling down.
He said the brain injury could have been caused by a punch to the head or by being pushed

                                              -4-
against a wall. He did not think the victim would have died had the brain injuries gone
untreated. He said some of the symptoms associated with the victim’s brain injury included
confusion, headaches, vision difficulty, and balance difficulty. He said it could take years
for the symptoms to appear.

       Dr. Megan Strother, a neuroradiologist, testified that she interpreted the victim’s head
CT scan and that the scan showed subdural hematomas below the skull at the top of the brain.
She said the subdural hematomas were caused by the tearing of bridging veins between the
brain and skull. She said these veins might tear because the brain moved and the skull
remained still or because the brain moved at a different speed than the skull. She said she
always considered motor vehicle accidents and child abuse as potential causes of this type
of injury.

        Dr. Strother testified that she could not determine the amount of time that elapsed
between the injury and the CT scan. She did not think the victim’s head injury was life-
threatening. She did not know if the victim suffered pain and did not observe any broken or
fractured bones. She could not offer an opinion regarding whether the victim’s injury would
result in disfigurement, loss of a bodily function, memory loss, or loss of mental faculties.
On cross-examination, Dr. Strother testified that she only interpreted scans and x-rays and
did not treat patients.

        Dr. Richard Hwang, an ophthalmologist, testified that he examined the victim after
non-accidental trauma was suspected and that he found retinal hemorrhages in both of her
eyes. He said the victim’s right eye had more hemorrhages than her left eye. He said he was
uncomfortable determining the cause of the hemorrhages because he was in training at that
time and would defer to Dr. Joos, the attending physician. He said the possible causes for
retinal hemorrhages included trauma and diseases that made patients prone to bleeding.

       Dr. Karen Joos, an ophthalmologist, testified that she examined the victim’s eyes and
concluded that retinal hemorrhages were present in each eye and that the right eye contained
more hemorrhages than the left eye. She did not observe swelling of the optic nerve, which
indicated a lack of cranial pressure. She said the left eye contained eight hemorrhages
centering around the optic nerve. Regarding the right eye, she counted fifteen hemorrhages
and said she saw small, pinpoint and large, circular hemorrhages.

       Dr. Joos testified that in young children, hemorrhages in both eyes were associated
with abusive head trauma. She said the hemorrhages could also be caused by crush injuries
from a motor vehicle accident. She concluded that the hemorrhages in the victim’s eyes were
caused by abusive head trauma. She said the abuse occurred within one week of her
examination. She said the hemorrhages were not life-threatening and were not associated

                                              -5-
with a loss of consciousness, pain, permanent disfigurement, or permanent vision loss. She
said hemorrhages usually disappeared within a couple of weeks.

       On cross-examination, Dr. Joos testified that retinal hemorrhages resulting from
abusive behavior were caused by rapid acceleration and deceleration, which caused the blood
vessels in the eye to break. She agreed the hemorrhages were signs of head trauma. She
denied the hemorrhages might result from a clumsy child walking and falling. On redirect
examination, she agreed the victim’s hemorrhages might be caused by one trauma or “one
blow.”

        Dr. Laurie Lawrence, board certified in internal medicine, pediatrics, and pediatric
emergency medicine, testified that she treated the victim in the emergency room when the
offense occurred. She said that when the victim arrived by air ambulance service, she was
quiet and lethargic and had bruises on her forehead. She did not know the age of the bruises.
She said the victim was conscious and opened her eyes when addressed by name. The
victim’s heart and lungs were normal, but she complained of pain when pressure was applied
to her stomach. The victim also had swelling in her left eye and had bruises on her left ear,
hands, buttocks, and thighs. She said some of the bruises were green and yellow, which
indicated they were older. She concluded that the victim suffered multiple traumas based on
the head injury and varying ages of the bruises. She denied the victim had broken or
fractured bones.

       On cross-examination, Dr. Lawrence testified that the victim’s injuries could cause
long-term neurologic disabilities, including a lower IQ, difficulty reading, and difficulty
performing intellectual skills. Based on the MRI and CT scans, she diagnosed the victim
with bi-frontal subdural hematomas, bleeding around the brain, and widespread bruising on
the body.

       On redirect examination, Dr. Lawrence testified that she did not know if the victim
suffered injuries that would result in long-term neurologic disabilities. On recross-
examination, she stated that the widespread bruising was not caused by falling from a
highchair. She said a fall-related injury usually damaged one side of the head, not both sides.

        Carrie Donnell, a pediatric nurse practitioner, testified that she participated in the
Vanderbilt Hospital child abuse consult service and that she was contacted by Dr. Lawrence
regarding the victim. She interviewed the Defendant and the victim’s mother, obtained
medical and family histories, discussed the victim’s condition with the treating and
consulting physicians, and concluded with the director of the consult service that the victim
suffered child abuse. She said the child abuse diagnosis was based on the head trauma, the
retinal hemorrhages, and the multiple, widespread bruises that could not be explained by the

                                              -6-
victim’s medical and family histories. She noted the victim had a tear inside her mouth
between the gum and the teeth.

        Ms. Donnell testified that the head injury alone might have been inflicted accidentally
but that the head injury with the other injuries were signs of abusive head trauma. She said
that all the victim’s injuries were consistent with child abuse and that she had never seen
these injuries explained by any other cause. She said that direct or indirect trauma to the lip
caused the tear and that trauma caused the bruises to the ear. She said the ear bruises might
have been caused accidentally but only when a patient had a specific medical history
“match[ing] that injury.” She said ear bruising was “highly indicative of abusive injury.”
On cross-examination, Ms. Donnell stated that she was unable to date the bruises but that
some of them were older based on the coloration. She agreed she could not date the bruises
to the victim’s ears.

       At the sentencing hearing, Probation Officer Lindsay Hill testified that she prepared
the presentence report and that the Defendant cooperated during her investigation. She was
able to confirm all the information the Defendant provided except if his employer would
continue his employment if he were placed on probation. She agreed the Defendant did not
have any previous convictions.

        Dr. Mildred Chen testified that she was the victim’s primary care pediatrician since
the victim’s birth on January 20, 2010, and that she last saw the victim at her three-year-old
well-child visit on May 6, 2013. She said the victim was a healthy child with normal growth
and development. She treated the victim on November 20, 2012, for an eye infection and
said the victim was otherwise healthy. The victim was seen on January 24, 2012, for her
two-year-old well-child visit. She said the victim was healthy and growing normally. She
denied observing any conditions that indicated the victim had confusion, headaches, defused
vision, or a loss of balance. She agreed that after the present incident, the victim was treated
at the emergency room for hitting her head on a coffee table.

       On cross-examination, Dr. Chen testified that at a well-child visit, a child’s heart rate,
respiration, temperature, weight, height, and head circumference were determined. She said
x-rays and laboratory work were not performed unless a reason existed for them. She denied
performing x-rays or scans on the victim since the incident but said she performed external
eye examinations using a flashlight to determine the victim’s “light reflex.” She said she
treated the victim two days after the victim hit her head on a coffee table and did not see
signs of a concussion at that time. She said a concussion could last up to one week. She
diagnosed the victim with a forehead contusion. She did not perform an eye exam to
determine if the victim needed glasses. She said the victim was treated by an
ophthalmologist.

                                               -7-
        On redirect examination, Dr. Chen testified that if she had seen a need to perform x-
rays or scans on the victim, she had the ability to order those tests. She saw no need for those
tests or the need for an eye exam during the victim’s well-child visits in May 2013 and
January 2012. She said that after the incident in the present case, she first saw the victim on
October 17, 2011, and that the victim had a normal condition. She agreed any trauma
suffered by the victim had lingering effects. Dr. Chen reviewed the medical records related
to the victim’s hitting her head on a coffee table and agreed the records showed that the
victim was diagnosed with a forehead contusion and a concussion without loss of
consciousness.

       Giles County Sheriff’s Investigator Shane Hunter testified that he interviewed the
Defendant within twenty-four hours of the victim’s being taken to the hospital. He read the
Defendant his Miranda rights. He said the Defendant denied any wrongdoing initially but
admitted “he had abused the child.” He said the Defendant consented to the police entering
his home.

        On cross-examination, Investigator Shane Hunter testified that the interview was
recorded and that it was admitted as evidence at a previous hearing. On redirect examination,
he stated that it was not uncommon for a suspect to deny wrongdoing in a child abuse case
but ultimately admit his or her involvement.

       The transcript of the Defendant’s recorded police interview was received as an
exhibit. The Defendant said he and the victim’s mother had been in a relationship for eight
or nine months and had lived together for three months. He said his son and the victim lived
with them. The Defendant said he put the victim in her highchair but did not “put the thing
on the front of it.” He said, though, the victim usually did not move. He said that he told the
victim, “don’t move, baby,” and that he walked away to use the restroom. He said that he
heard a loud thud, that he ran to the victim, that the victim was lying on the floor, that he
picked her up, and that she was limp. He called the victim’s mother and then 9-1-1. He said
he unsuccessfully attempted to wake the victim with a cold rag.

       The Defendant stated that he found the victim on her back. He described the chair as
wooden with a booster seat and said the victim was not buckled in the seat. He thought the
victim fell about one and one-half to two feet. He denied that the victim was conscious when
he found her and that his son was present when the victim fell. He said he worked from 3:00
to 11:00 p.m. the night before the offense, went to a neighbor’s house when he arrived home,
walked home, and went to bed. He said the victim’s mother left for work early the next
morning. He said he woke at 10:30 a.m. and woke the victim about five minutes later. When
asked about the victim’s bruises, he said the victim fell off the porch when she was in her
mother’s care.

                                              -8-
          Regarding child discipline, he said he and the victim’s mother attempted to put the
children in timeout or send them to their rooms. He said sometimes they “might spank them
on the butt a little bit or just pop them. You know, smack them on the hand a little bit and
. . . tell them, ‘No.’” When Investigator Hunter told the Defendant that the medical staff at
Vanderbilt Hospital believed the victim had been abused and that her injuries were
inconsistent with a fall from a highchair, the Defendant said he had no reason to hit her.

        The Defendant agreed he and the victim’s mother were having financial difficulty and
were tired from working long hours. He agreed that “things happen . . . especially with little
kids,” that children test parents’ patience, and that “sometimes things get out of control.”
The Defendant repeated that he had no reason to “abuse the child.” He said that although he
had grabbed the victim’s face, he had no reason to hit her. He said that when he grabbed her
face, he turned her face toward him to clean it and might have squeezed too hard. He denied
knowing how the victim’s ears were bruised. The Defendant admitted having anger
problems but denied his anger could cause him to hit a child.

       When questioned further about the truthfulness of his statement, the Defendant
admitted he had hit the victim but said he did not intend to hurt her. He expressed concern
that he would lose custody of his son. He said he was hit across the face as a child and
admitted he wanted “some kind of help” for his anger problems. He said that when he
became angry, he attempted to walk away to calm down. He admitted again that he had
slapped and hit the victim but denied he “really physically hurt the kid.” He denied causing
the victim’s head injuries and said the victim’s falling from the highchair caused those
injuries. He continued to claim the victim fell from her highchair when he was in the
bathroom. He said the bruises on the victim’s ears might have been caused two days
previously when he “swatted” the victim. He said that he did not want to go to jail and that
he did not think he belonged in jail.

        Regarding the victim’s injuries, the Defendant stated that he “whooped” the victim
on her bottom “a little bit” and slapped her on the side of her head but that he did not mean
to hurt her. He said the victim “got a little out of hand.” He said he hit the victim on her
cheek “to turn her head and stuff.” He said that the victim became fussy, that he gave her
a bottle, and that the victim “slid” out of the highchair onto the floor. He said that he was
backhanded and swatted as a child and that it was “just a cycle thing.” He said things got
out of hand. He said, though, that he did not want to incriminate himself because he did not
want to lose his job and family. He said that he usually did not hit a child, that it was a spur-
of-the-moment thing, and that it was “just in swinging distance.” He agreed he slapped the
victim with his hand and said he was closer to the victim than he thought. He said the bruises
to her arms and legs were caused by the victim’s playing with his son. He said the bruises



                                               -9-
on the victim’s forehead were caused by her falling off the steps one week previously. The
Defendant gave the investigator permission to enter his home.

       At the sentencing hearing, Gene Kelly testified that he had known the Defendant for
three or four years and that he was a family friend. He said he baptized the Defendant on
September 11, 2011. He said he thought the Defendant could benefit from a second chance
because he had learned from his mistakes. He did not believe the Defendant was a danger
to the community. On cross-examination, he stated that he and the Defendant had not
discussed the facts of the case. When asked if he was surprised about the extent of the
victim’s injuries, he said he was not there when the incident occurred.

        The Defendant apologized for hurting the victim and said he took responsibility for
his actions. He told the court he wanted to continue working and supporting his son. He said
he was willing to take classes or obtain any type of help the court ordered.

        The trial court considered the evidence at the sentencing hearing, the principles of
sentencing, the presentence report, the arguments of counsel, the nature and characteristics
of the offense, the evidence regarding enhancement and mitigating factors, the statistical
information from the Administrative Office of the Courts regarding sentencing practices for
similar offenses in Tennessee, and the Defendant’s statement to the court. The court found
that the Defendant had no previous convictions and had maintained employment since high
school.

       The trial court found that the expert medical testimony showed the victim suffered
severe trauma as a result of the Defendant’s conduct. It found that the Defendant “denies or,
certainly, downplays his involvement, to the extent that he is taking responsibility” for the
twenty-month-old victim’s injuries. The court noted the nurse practitioner’s testimony that
the victim had bruises on multiple locations of her body, a tear to the inside of her mouth, a
subdural hemorrhage, a retinal hemorrhage, a brain injury, and abusive head trauma that was
never associated with an accident. The court found that the victim suffered severe child
abuse, that the victim was not just backhanded, and that the Defendant used violent force.
The court noted that the Defendant’s main concerns were going to jail and losing his
handgun carry permit.

        The trial court found that the victim’s future medical condition was unknown. The
court found that Dr. Wushenshy concluded that the “probable outcome” was permanent
deficit of function in some way and that some permanent injury was common with injuries
like those suffered by the victim because the injury was close to the primary visual center of
the brain. The court noted that only time would determine the extent of the victim’s injuries.



                                             -10-
       Regarding the Defendant’s potential for rehabilitation, the trial court stated that it was
concerned whether the Defendant would commit another act of child abuse. It noted that the
Defendant claimed he was under stress and had anger problems but that he also was
concerned about going to jail and losing his handgun permit. The court found that the
Defendant’s request for anger management classes was insincere. Regarding whether
probation would depreciate the seriousness of the offense and whether confinement was
necessary to deter others from committing similar offenses, the court found that the
Defendant did not appreciate the seriousness of his conduct and that the Defendant refused
to admit the extent of his conduct. The court found that the Defendant was “far from telling”
what he did to the victim.

       Regarding mitigation, the trial court refused to find that the Defendant showed
genuine remorse for his conduct and discredited the Defendant’s statement of remorse. The
court found that although the Defendant provided a police statement, it did not believe the
Defendant. The court refused to find that the offense was committed without a sustained
intent to violate the law because the evidence showed previous abuse and because the
Defendant admitted previously abusing the victim. See T.C.A. § 40-35-113(11) (“The
defendant, although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the
criminal conduct.”). The court found that the Defendant had no previous criminal
convictions and no previous substantial conflicts with the law.

        The court found that enhancement factor (4) applied because the twenty-month-old
victim was unable to summon help. See T.C.A. § 40-35-114(4) (2010) (“A victim of the
offense was particularly vulnerable because of age or physical or mental disability.”). The
court placed “great weight” on factor (4). The court found that enhancement factor (6)
applied because of the extent of the victim’s brain injuries. See id. § 40-35-114(6) (“The
personal injuries inflicted upon . . . the victim was particularly great.”). The court found that
enhancement factor (10) applied because the proof showed that the Defendant had no
hesitation about committing a crime when the risk to human life was high. See id. § 40-35-
114(10). The court placed “great weight” on factor (10) and noted the medical expert
testimony regarding the probability of long-term damage due the extent of the brain injury.
The trial court found that enhancement factor (14) applied because the Defendant was living
with the victim and her mother at the time of the offense and because the Defendant was
entrusted to care for the victim when the injuries were inflicted. The court stated factor (14)
was serious and important for the court to consider. See id. § 40-35-114(14) (“The defendant
abused a position of . . . private trust . . . that significantly facilitated the commission or the
fulfillment of the offense.”). The court did not apply mitigating factors and sentenced the
Defendant to twelve years’ confinement as a Range I, standard offender. This appeal
followed.

                                               -11-
       The Defendant claims that the trial court erroneously failed to apply mitigating factor
(11) and to consider his remorse and his cooperating with the police in determining his
sentence. See T.C.A. § 40-35-113. The State argues the trial court did not abuse its
discretion.

        The length of a sentence “within the appropriate statutory range [is] to be reviewed
under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise,
380 S.W.3d 682, 708 (Tenn. 2012). In determining the proper sentence, the trial court must
consider: (1) any evidence received at the trial and 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, (5) any mitigating or statutory
enhancement factors, (6) statistical information provided by the Administrative Office of the
Courts as to sentencing practices for similar offenses in Tennessee, (7) any statement that the
defendant made on his own behalf, and (8) the potential for rehabilitation or treatment.
T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

        Generally challenges to a trial court’s application of enhancement and mitigating
factors are reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We
must apply “a presumption of reasonableness to within-range sentencing decisions that
reflect a proper application of the purposes and principles of our Sentencing Act.” Id. at 707.
“[A] trial court’s misapplication of an enhancement or mitigating factor does not invalidate
the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court within
the appropriate range should be upheld.” Id.

       Regarding manner of service, our supreme court has applied the abuse of discretion
standard with a presumption of reasonableness to “questions related to probation or any other
alternative sentences.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). Under the
Criminal Sentencing Reform Act’s 2005 revisions, a defendant is eligible for probation if the
sentence imposed is ten years or less. See T.C.A. § 40-35-303(a) (2010); State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008). A defendant has “the burden of establishing suitability for
probation.” T.C.A. § 40-35-303(b); see Carter, 254 S.W.3d at 347. In order for a defendant
to meet this burden, he or she must show that “probation will ‘subserve the ends of justice
and the best interest of both the public and the defendant.’” Carter, 254 S.W.3d at 347
(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).




                                             -12-
        Regarding mitigation factor (11), the Defendant claims that he did not have a
sustained intent to violate the law and that the trial court erroneously found that his conduct
was not a “one-time thing.” The record reflects that Dr. Laurie Lawrence testified that the
victim arrived at the emergency room with widespread bruising on her ears, hands, buttocks,
and thighs. Although she could not determine the ages of the bruises, the green and yellow
coloration of some showed that they were inflicted before the incident related to the present
offense. Dr. Lawrence concluded that the victim suffered multiple traumas based on the head
injury and varying ages of the bruises and that the widespread bruising was not caused by
falling from a highchair. Nurse Practitioner Carrie Donnell was also unable to date the
bruises but said some of them were older based on the coloration. During his police
interview, the Defendant said the bruises on the victim’s ears might have been caused two
days previously when he “swatted” the victim. We note the expert medical testimony that
showed bruises on the ears are indicative of child abuse. He also admitted that the incident
related to the present charge was “just a cycle thing.” We conclude that the trial court did
not abuse its discretion.

        Regarding the Defendant’s remorse and cooperating with the police, the record
reflects that the trial court considered whether the Defendant was remorseful for his conduct
but discredited the Defendant’s claims of remorse. Likewise, the trial court considered his
providing a statement to the police but found the Defendant was not being truthful regarding
his conduct. The Defendant expressed more concern during his police interview of losing
custody of his son, losing his job, and avoiding jail and less concern about the victim’s well-
being and his abusive conduct. Although the Defendant addressed the court at the sentencing
hearing and claimed responsibility for his conduct, his statement focused on his desire to
continue working and supporting his son and his willingness to take anger management
classes as the court saw fit. We cannot conclude that the court abused its discretion by
refusing to consider the Defendant’s remorse and his cooperation with the police as
mitigation.

        The Defendant also claims that the trial court erroneously applied enhancement factors
(6) and (10). See T.C.A. § 40-35-114(6), (10). Regarding factor (6), the Defendant claims
that serious bodily injury was an element of aggravated child abuse and that the victim did
not suffer injuries beyond those establishing the elements of the offense. The State concedes
that the trial court erroneously applied factor (6). We agree that the trial court erroneously
applied this factor. Our supreme court has concluded that an enhancement factor may not
be applied when the factor is an element of the offense. State v. Imfield, 70 S.W.3d 698, 706-
07 (Tenn. 2002); see State v. Dean, 76 S.W.3d 352, 381 (Tenn. Crim. App. 2001) (stating
that factor (6) may be applied when the victim “‘sustained appreciable personal injuries
beyond those incidental to the crime’”) (quoting State v. Carico, 968 S.W.2d 280, 286 (Tenn.
1998)). Although the evidence shows that the victim suffered serious bodily injury, the

                                             -13-
evidence fails to show that the victim suffered injuries beyond that necessary to establish the
offense.

       Regarding enhancement factor (10), the Defendant argues this factor may only be
applied when a defendant endangers the lives of people other than the victim. The State
concedes that the trial court misapplied this factor. We agree that the trial court erroneously
applied this factor. This court has concluded that factor (10) should not be applied when the
defendant’s conduct puts only the victim at risk. State v. Kelley, 34 S.W.3d 471, 480 (Tenn.
Crim. App. 2000); see State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995).

        Our inquiry, though, does not end with the trial court’s misapplication of two
enhancement factors. The Defendant’s sentence is not invalid “[s]o long as there are other
reasons consistent with the purposes and principle of sentencing[.]” Bise, 380 S.W.3d at 706.
Regarding the nature of the offense, the trial court found that the victim had bruises on
multiple locations of her body, a tear to the inside of her mouth, a subdural hemorrhage, a
retinal hemorrhage, a brain injury, and abusive head trauma that was never associated with
an accident. The court found that the victim suffered severe child abuse, that the victim was
not just backhanded, and that the Defendant used violent force. Regarding the potential for
rehabilitation, the court was concerned that the Defendant would commit future acts of child
abuse because he failed to appreciate the seriousness of his conduct and because he refused
to admit the full extent of his actions. The court also expressed the need to prevent
depreciating the seriousness of the offense and to deter others from committing similar
offenses. Moreover, the court properly applied enhancement factors (4) and (14). See
T.C.A. § 40-35-114. The court placed great weight on factor (4) because the victim was less
than two years old and was unable to summon help. Regarding the abuse of private trust, the
court said factor (14) was serious and important for it to consider in determining the length
of the sentence. We conclude that although the trial court improperly applied two
enhancement factors, the record shows that the twelve-year sentence “is otherwise in
compliance with the purposes and principles” of our Sentencing Act. See Bise, 380 S.W.3d
at 709-10.

        The Defendant also claims that the trial court erred by relying on deterrence and
depreciating the seriousness of the offense in denying him alternative sentencing. The State
argues the court did not abuse its discretion. We conclude that the Defendant is not entitled
to relief.

       The record reflects that the trial court found that probation was not appropriate based
on the need to prevent depreciating the seriousness of the offense and to deter others from
committing similar offenses. The court found that the Defendant failed to appreciate the
seriousness of his conduct because he refused to provide a complete account of what

                                             -14-
occurred. The Defendant’s downplaying his conduct and being concerned mostly with losing
his son, family, and job supports the court’s conclusion that the Defendant failed to
appreciate the seriousness of his conduct. The expert medical testimony shows the severe
injuries inflicted upon the victim and the unknown status of the long-term impact on her
neurological development and eyesight. Likewise, we note that because the Defendant’s
sentence was twelve years, he was ineligible for probation. See T.C.A. § 40-35-303(a);
Carter, 254 S.W.3d at 347. We cannot conclude that the trial court abused its discretion.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.

                                          ___________________________________
                                          JOSEPH M. TIPTON, PRESIDING JUDGE




                                           -15-
