             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                FILED
                          JUNE 1994 SESSION
                                                            June 30, 1997

                                                         Cecil W. Crowson
STATE OF TENNESSEE,           )                         Appellate Court Clerk
                              )
             Appellant,       )     No. 01C01-9402-CC-00038
                              )
                              )
                              )     Maury County
v.                            )
                              )     Hon. William B. Cain, Judge
                              )
CHRISTOPHER LANGLEY,          )     (Sentencing)
                              )
             Appellee.        )



For the Appellant:                  For the Appellee:

Charles W. Burson                   Dana C. Holloway
Attorney General of                 810 South Garden Street
Tennessee                           P.O. Box 339
  and                               Columbia, TN 38402-0339
Kimbra R. Spann
Assistant Attorney General
 of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493

T. Michael Bottoms
District Attorney General
  and
Robert C. Sanders
Assistant District Attorney
General
Maury County Courthouse Annex Building
Columbia, TN 38401




OPINION FILED:_______________________


AFFIRMED

Joseph M. Tipton
Judge
                                             OPINION



                The state appeals as of right from the Maury County Circuit Court's

imposing a minimum sentence upon the defendant, Christopher Langley, and granting

him probation. The defendant was convicted in a jury trial of aggravated child abuse, a

Class B felony, 1 for which he received the minimum sentence of eight years for a

Range I, standard offender. The state contends that the trial court erred in imposing a

minimum sentence and granting probation given the presence of several enhancement

factors and the seriousness of the offense.



                The victim of the offense is the defendant's stepson, who was ten months

old at the time of the offense. On Wednesday, February 24, 1993, the defendant

called his wife at her place of employment and advised her that the victim had fallen off

the couch, hit his head and was not acting right. The couch was located in a carpeted

room. The victim's mother asked the defendant to bring the child to her so that she

could look at him. When they arrived, the baby was sleeping and seemed to be fine.

Later that day, the victim's father picked him up for visitation. The defendant told the

child's father that the child had fallen off the couch and that he should keep an eye on

him. The victim's father also exercised his visitation with the child the following Friday

evening through Sunday evening.



                A written statement signed by the defendant was introduced into

evidence by the state. In this statement, the defendant said that he began to notice

the symptoms shortly after the victim returned home from weekend visitation with his

natural father.




                 1
                   After the events in this case, the statute under which the defendant was prosecuted was
amended, effective July 1, 1994, to provide that aggravated child abuse of a victim six years of age or
less is a Class A felony. See T.C.A. § 39-15 -402 (Sup p. 1996).

                                                    2
              The victim's father testified that when he picked his son up on February

24, 1993, the defendant told him that the victim had fallen off the couch and that if he

started acting funny, to bring him back and they would take him to the clinic. The

father stated that his son's behavior was unusual in that he lay limply in his arms and

while in his car seat, his eyes were rolling back in his head and he was acting like he

was "super tired." He said that he took the victim to a mall, but the child "just acted

lifeless, like he was really sick and tired and drained out." He stated that he then took

the victim home around 7:30 that evening and told the defendant that they should take

the victim to a doctor. The following Friday, the victim visited with his father for the

weekend. The father testified that the victim "acted like he had an ear infection,

playing with his ear, and he had a stiff neck." When he returned the victim to the

defendant's home, he said he told them that the victim had been taking long naps and

slept the whole weekend, had a stiff neck and was playing with his ear. The father

denied that he did anything to harm the victim.



              The victim continued to exhibit certain symptoms of illness or injury and

an appointment was made to see a doctor on Thursday, March 4, 1993. On the day of

the appointment, the victim started having seizures. He was taken to the Maury

County Regional Hospital where tests revealed a fracture of the back portion of the

skull and a collection of fluid within the skull. The victim was transported to Vanderbilt

Hospital where tests confirmed a crack in the skull and the presence of large

collections of fluid. The fluid had the appearance of "old blood" with some clotting that

was partially dissolved.



              The initial treatment at Vanderbilt Hospital consisted of removing portions

of the blood clots by inserting a needle through the skull. This was done on multiple

occasions for several days. Then, a permanent drainage device was inserted through

the victim's skull. The neurosurgeon who treated the victim at Vanderbilt testified that



                                             3
this consisted of a little "three millimeter tube that is fed into that space between the

brain and skull, and then tunneled underneath the skin into the abdominal cavity, and

the fluid just drains in there, essentially, continuously, over a period of months or even

years." The victim was hospitalized for approximately twenty days. The neurosurgeon

testified that although the injury had the potential to interfere with the victim's future

development, he could not say for certain that there was or was not any permanent

brain damage.



              There was no evidence introduced that disclosed the exact manner in

which the injuries were actually inflicted upon the victim. However, the doctor who

examined the child at the Maury County Regional Hospital testified that to cause such

injuries, a "very significant force" was required, such as a "blow to the head or a

significant fall." Also, the neurosurgeon testified that he concluded, previously from the

types of blood clots found, that a great deal of force had been applied to the victim's

head. He said that a fall from a normal height couch to a carpeted floor would not

cause such injuries. He stated that he believed that the child was abused and

assaulted. Also, although acknowledging that the injuries could have been accidental,

he believed the type of accident that might cause such injuries would be "a high-speed

motor vehicle accident where a car was going 40, 60 miles an hour and stopped in a

matter of micro-seconds, or some fall from a great height, say, 10, 15, twenty feet."



              The jury found the defendant guilty. At the sentencing hearing, the state

presented two witnesses. Melinda Langley gave the following testimony. She had

been previously married to the defendant. Their marriage ended in divorce and the

defendant subsequently married his present wife, the victim's mother.



              At the time this witness and the defendant married, she had a ten-month-

old child from a prior relationship. They met in Boise, Idaho. She testified concerning



                                              4
a child abuse investigation conducted by Idaho authorities, apparently concerning both

her and the defendant. Her child had apparently been badly bruised and the

Department of Human Services removed the child from her custody and placed him in

foster care with her mother. This child was eventually placed for adoption.



              Later, she and the defendant married and she became pregnant. She

testified that the defendant had "a big problem with marijuana" and that the defendant

smoked pot in the parking lot while she was in labor. She further testified that they left

Boise, Idaho, and moved to Tennessee after the defendant was charged by his former

employer with "some sort of embezzlement or something.” She testified as to one

occasion when the defendant put liquor in their son's baby bottle. She confronted him

and he promised never to do it again.



              Their marriage deteriorated, and she testified concerning the defendant's

actions during the course of the separation and divorce. She said that he assaulted

her, that he intentionally rammed her car with his car, that the police caught him at her

bedroom window with cameras and other equipment and that the police found a

marijuana pipe in his car. She said the police told her they were going to charge him

with possessing drug paraphernalia. She further testified that there was one incident

when the defendant rammed her car at an intersection, knocking her into the

intersection, while their son was in the car with her. Also, she stated that while the

victim in the present case was in the hospital, the defendant called her and admitted

that he had been the one to bruise her child in Idaho, but said that he did not hurt the

victim.



              Tracy Langley, the defendant's wife and the mother of the victim, was the

other witness who testified for the state. She described an incident that occurred in

January of 1993. She had been out looking for a job and the victim was left with the



                                            5
defendant. When she returned, the defendant told her that the victim had fallen in his

playpen and hit a toy. He had a cut on his head. She went to work that afternoon and

when the defendant picked her up at 11:00 that night, he told her that the victim had

fallen again and hit his chin on the coffee table. Within a day or two, the victim starting

acting lethargic, sleeping often and throwing up. The first diagnosis was a strep

infection. Later, the victim was treated at Vanderbilt Hospital. She stated that the

doctors told her that the victim's sodium was low in his blood and that this could be

caused by a blow to the head. She stated that during the time the victim was at

Vanderbilt Hospital being treated for the abuse for which the defendant was convicted,

the doctors, at that time, told her that they had discussed reporting the prior incident as

the possible result of child abuse.



              She also stated that the defendant was never violent with her and that

she never saw him harm the victim in any way. She added that while the victim was

hospitalized, the defendant appeared very concerned about his condition. She and the

defendant were separated at the time of the trial.



              The defendant's father and mother testified at the sentencing hearing on

behalf of the defendant. The defendant's father testified that the defendant was an

ideal son growing up, that he was an honor student, that he is not violent, that he is not

a criminal and that he is a good human being. He testified that the defendant loved his

son very much and had an excellent relationship with him. He said that the victim's

mother was concerned about the victim's father hurting the victim during visitation. He

further stated that the defendant could live in his home if the court granted probation.



              The defendant's mother corroborated her husband's testimony. She said

that the defendant is a very gentle person. She further testified that she knew that her

son did not hurt the victim and that even though the jury found him guilty, he was not



                                             6
guilty. She stated that to send the defendant to prison for something that he did not do

would probably "ruin him for life, if not a whole lot of other people with it.”



              Two witnesses from the defendant's former place of employment testified

that the defendant was an excellent employee, that he got along well with everyone,

and that he definitely would have a job there if granted probation. A friend of the

defendant's family testified that the defendant was a fine person and that she had

never seen him show any signs of violence at all. The defendant submitted numerous

letters of support from various individuals.



              The defendant testified at the sentencing hearing. He stated that the

incidents of alleged abuse in Idaho involved both him and his former wife spanking the

child, but that they never intended to hurt the child. He denied assaulting his former

wife, stating "maybe it was a cornering." He said that he and his former wife had a

long custody battle. He stated that he, at one time, had a marijuana problem, but that

it had been over a year since he had "touched anything."



              The defendant said he was asking the court for probation "mainly,

because I didn't do anything to Taylor. I didn't harm him in any way." He denied

knowledge of any warrant outstanding in Idaho for his arrest for embezzlement or theft.

He stated that he did run into his ex-wife's car with his, but it was accidental. He

admitted that he intentionally hit her car from behind at the time his child was in the

vehicle, but said that it was at about five miles an hour and was just a bump.



              The presentence report reflects that the defendant is a high school

graduate with a good employment record. He has no previous criminal convictions and

was twenty-three years old at the time of sentencing.




                                               7
In imposing the sentence, the trial court stated the following:

       The matter of the enhancing factors and the weight that
they are to be given is a matter that addresses itself to the
discretion of the trial judge. Two factors are apparent; that is,
the previous incident in Idaho, and the age of the child.

        Mr. Langley has an exemplary record throughout his life
in all instances save those involving a child of very tender
years. He has been convicted. His behavior doesn't make
rational sense, but then seldom does child abuse make
rational sense.

       The long and the short of it is, I've either got to apply
the enhancing factors and send him to the penitentiary, or
apply the minimum sentence and put him on eight years of
probation. No matter how we try to cut it, that's the
alternative, and that's all of the alternatives that are available
to the Court.

       No useful purpose will be served by confining him. The
defendant will be sentenced to eight years in the Department
of Correction as a Standard Range I offender.

        The application for probation will be granted on rather
strict conditions, Mrs. Moorehead, that are going to have to be
coordinated with Judge Shipley in Nashville, relative to this
child, Josh.

        The child is his. He must have a relationship with the
child, but that is a matter that really addresses itself to Judge
Shipley, not to the criminal court. But your operations are
going to have to be coordinated with Judge Shipley.

       During the course of probation, or at least until further
hearing, Mr. Langley is to have no contact with minor children.
He is to undergo such therapy and such counseling as you
deem to be most appropriate.

        I say that because, as observed before, Mr. Langley's
record, beyond these incidents involving these small children,
is an exemplary record. He is a hard worker. He has worked
all of his life. He is a good employee. He has the potential to
be a functioning citizen. His employer like[s] him. He has
family support.

       But on the other side of that coin is that we have a
seriously injured child, who somebody -- and the jury says Mr.
Langley -- brutally beat. And that child, and other children
similarly situated, are going to be protected and the Court has
to assume at this point that this defendant is guilty, and that
he will be subjected to such intensity of supervision as to
make certain that this does not happen to anybody else.

       I recognize . . . I'm taking a chance. Probably a chance
that, on the hard core of the record, might not be justified. But


                                8
              that's a shot I have to call, and I have to take the responsibility
              for it.



              The trial court is to exercise its discretion in determining the specific

sentence and the appropriate combination of sentencing alternatives with that

discretion to be guided and limited by the sentencing laws. See State v. Moss, 727

S.W.2d 229, 235-38 (Tenn. 1986). In this respect, the 1989 Sentencing Act mandates

procedures, while enabling the trial court to exercise its discretion within those

procedures. Thus, to determine the appropriate sentence, the trial court is required to

consider:

              (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 the
              enhancement and mitigating factors in §§ 40-35-113 and 40-
              35-114; and

              (6) Any statement the defendant wishes to make in his own
              behalf about sentencing.

T.C.A. § 40-35-210(b).



              The trial court’s sentencing decision is given the presumption of

correctness upon appellate review. T.C.A. §§ 40-35-401(d) and -402(d). For review

purposes, the trial court is to place on the record the enhancement or mitigating factors

if found to exist and to make findings of fact upon which application of the sentencing

principles was based. T.C.A. §§ 40-35-209(c) and -210(f). In this fashion, the

presumption of correctness of the trial court’s action “is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,


                                              9
169 (Tenn. 1991). Ultimately, the function of appellate review is to insure that the trial

court complied with the sentencing laws in setting a sentence and if it did, the sentence

will be affirmed even if we would prefer a different result. See State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              The state argues that pursuant to T.C.A. § 40-35-114(1), the defendant's

history of criminal behavior relative to child abuse, assaultive behavior, marijuana use

and theft should enhance his sentence. It contends that pursuant to T.C.A. § 40-35-

114(4), the sentence should be enhanced because the victim's age rendered him

particularly vulnerable. Also, it submits that T.C.A. § 40-35-114(15) applies in that the

defendant, as the victim's stepfather, abused a position of private trust. Regarding

probation, the state notes that enhancing the sentence to more than eight years would

render the defendant ineligible for a suspended sentence. See T.C.A. § 40-35-303(a).

Finally, it argues that even if the minimum sentence is appropriate, the nature and

circumstances of the offense are sufficiently serious as to render probation

inappropriate.



              Regarding the length of a sentence, although the trial court has no

authority to enhance a sentence above the minimum without the existence of a

statutory enhancement factor, see T.C.A. § 40-35-210(c), it is not required to enhance

solely because such a factor is shown to apply. It remains within the trial court's

discretion to determine what weight, if any, the factor merits given the totality of the

circumstances of the case. See T.C.A. § 40-35-210(d) (if enhancing but no mitigating

factors, "the court may set the sentence above the minimum . . . .") and Sentencing

Commission Comments; State v. Moss, 727 S.W.2d at 235. Thus, the mere fact that

an enhancement factor applies does not call for a rote increase in a sentence.

Moreover, the trial court’s assessment of the weight to be given applicable factors does

not occur in a vacuum. Essentially, this means that the trial court may view a



                                            10
defendant’s positive circumstances to mitigate against an enhanced sentence, a

consideration which it is entitled to make. See, e.g., T.C.A. § 40-35-113(13). Also, it

must be done with adherence to the statutory sentencing principles.

              The Act, in order to accomplish its “foremost purpose,” which
              is to “promote justice,” provides that the sentence imposed
              must be the least severe necessary to achieve the
              punishment justly deserved, to assure fair and consistent
              treatment of all defendants, to prevent crime, and to promote
              respect for the law.

State v. Ashby, 823 S.W.2d at 168. It is a case-by-case process.



              In reviewing the trial court’s findings and determinations in this case, we

note that they do not expressly address every contested fact or claim against the

defendant. In this respect, it is important that a trial court’s findings are sufficiently

discernable from the record to afford proper appellate review. However, one can

rationally conclude from the trial court’s statements that it did not accredit a lot of what

the defendant’s former wife claimed and gave no significance to the defendant’s

discontinued marijuana abuse or to the car collision incident occurring during domestic

strife. Also, it is obvious that the trial court found that the positive aspects of the

defendant’s background and personal circumstances outweighed the negative,

including the circumstances surrounding the offense.



              In other words, after hearing all of the testimony, observing the witnesses

testify, reviewing the circumstances of the case and the presentence report, including

the many letters in support of the defendant, the trial court determined that the

defendant’s previous history and the particular vulnerability of the victim did not warrant

an increase in the sentence above the minimum provided by law. It is also apparent

that the trial court viewed those qualities about the defendant which are conducive to a

grant of probation to be relevant to the length of the sentence to be imposed. Whether

we view such consideration as the application of mitigating factors under T.C.A. § 40-

35-113(13) or as simply a reduction in the weight given the enhancement factors under


                                              11
 the totality of the circumstances, we conclude that the record before us contains

 sufficient evidence to support the length of the sentence imposed by the trial court.



                   Moreover, although the trial court did not specify the defendant’s abuse

 of a position of private trust as an enhancement factor,2 the record shows that the court

 was fully aware of the facts upon which such factor is based. In fact, it shows that the

 trial court addressed its concern about the defendant’s future contact with his child or

 any other young children by barring such contact and by requiring appropriate

 counseling. Thus, we believe that the trial court did assess the relevant culpability of

 the defendant under the facts supporting enhancement factor (15), even though it did

 not note its application.



                   As for the manner of service of the sentence, the state primarily contends

 that the seriousness of the offense requires a denial of probation. It also relies upon

 the enhancing factors that exist. Initially, we note that the trial court’s findings and

 conclusions indicate that it may have viewed its choices to be the penitentiary or full

 probation, thereby ignoring split or periodic confinement as alternatives. However, its

 conclusion that confinement would serve no useful purpose in this case reflects that it

 considered full probation as the proper course to take.



                   In any event, we believe that the record justifies the trial court’s decision.

 As the state asserts, probation can be denied due to the nature of the offense and that

 a negative factor, such as a criminal record, may be sufficient to support a denial of

 probation. See State v. Travis, 622 S.W.2d 529, 533-34 (Tenn. 1981); State v. Baron,




     2
       W e no te that the state did not argue in the trial court that the violation o f private trus t
enh ancem ent facto r should apply.

                                                          12
659 S.W.2d 811, 815 (Tenn. Crim. App. 1983). Unquestionably, the offense was

serious in terms of the victim’s injuries. However, such circumstances and criminal

history are to be considered with all of the other relevant factors and the sentencing

principles by the trial court. In this regard, as previously noted, it is apparent that the

trial court did not find the criminal history to be as significant as the state asserts.



              The trial court presided at the trial and the sentencing hearing, observing

all of the witnesses. It heard the defendant’s former wife present a litany of complaints

about the defendant’s previous conduct, but It observed the defendant refute or

substantially minimize her testimony. It heard his explanation of prior marijuana use

and his stopping such use before this case. It heard his account of his car striking his

former wife’s car at a low rate of speed and his mother’s supporting account of the car

damage being minimal. It heard his account of how he spanked his own child and of

his denying any abuse. Also, it was provided substantial evidence at the sentencing

hearing in favor of the defendant that would support probation.



              Under the foregoing circumstances, the trial court chose to grant

probation, noting that it was “taking a chance.” The record before us would easily

support a denial of probation. However, it also reflects that the trial court sufficiently

considered the sentencing principles and the relevant facts and circumstances in the

case so as to preserve the presumption of correctness for its determinations. In

consequence, the grant of probation was within the trial court’s discretion and we

conclude that sufficient evidence exists to preclude us from finding an abuse of

discretion that would authorize a reversal as a matter of law.




                                              13
              In consideration of the foregoing, and the record as a whole, the

judgment of the trial court is affirmed.



                                                ____________________________
                                                Joseph M. Tipton, Judge


CONCUR:



____________________________
David H. Welles, Judge



_____________________________
Stephen M. Bevil, Special Judge




                                           14
