        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
                     ___________________________________

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


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
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 four-
year-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



                                             3
       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



                                              4
        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 twenty-
five 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.
                                             5
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

                                             6
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,
                                             7
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.


                                              ____________________________________
                                              J. ROSS DYER, JUDGE

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