        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 19, 2016


       STATE OF TENNESSEE v. CHARLES HENRY MIDGETT, III

                Appeal from the Criminal Court for Davidson County
                   No. 2014C2302    Cheryl A. Blackburn, Judge




                  No. M2015-00845-CCA-R3-CD – Filed July 1, 2016
                        _____________________________

The defendant, Charles Henry Midgett, III, pled guilty to two counts of attempted
aggravated child abuse, a Class B felony. As part of the agreement, the defendant pled
guilty as a Range I offender but waived the release eligibility within his range, and he
agreed that the trial court would determine the length of the sentences, the release
eligibility, and whether the sentences would run concurrently or consecutively. The trial
court sentenced him to twelve years’ imprisonment for each count, to be served at forty-
five percent. The sentences were to be served concurrently. The defendant appeals,
asserting that the aggregate sentence is excessive and that the trial court erred in applying
certain mitigating and enhancing factors. Discerning no abuse of discretion, we affirm
the sentences imposed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Dawn Deaner, District Public Defender; and Jonathan F. Wing (at hearing) and Emma
Rae Tennent (on appeal), Assistant District Public Defenders, for the Appellant, Charles
Henry Midgett, III.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn Funk, District Attorney General; and Brian Holmgren (at plea)
and Pam Anderson (at sentencing), Assistant District Attorneys General, for the
Appellee, State of Tennessee.
                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The defendant became involved in a relationship with his co-defendant, the mother
of the two-year-old victim, in the fall of 2013. At first, the two lived with the victim’s
maternal grandmother, but the victim’s maternal grandmother asked the defendant to
leave her home, and the victim’s mother and the victim went with him. The defendant,
the victim’s mother, and the victim began sharing a motel room in December 2013.

       The defendant exchanged a series of text messages with the victim’s father at
some point in January 2014. In addition to making threats against the victim’s father and
casting aspersions on him for attending college, the defendant made the following threats
against the victim in the text messages to the victim’s father:

                    N*gga you a b*tch you dont even whoop yo child it
             take another n*gga to whoop yo childs a** yeah i said whoop
             his a**

                   Why you talking you mute not see yo son n*gga yeah
             thts my call since you got nuts now lets see if tht make yo
             hoea** mad

                    Touch yo son n*gga i whoop hus a** ever tyme tht
             n*gga sh*[t] or p*ss n*gga you see how jumping his a** is n
             thk i dont whoop his a** must thk am joking huh

                   Must beleave if she said tht ill beat her a** n yo son
             a** my n*gga

                   Listen to meh clear my n*gga i dnt gt dump i do tht
             bruh she rite here nxt to meh bruh im looking at yo son rite
             now thking shold i sat his a** outside n the cold rite now thnk
             im playing

                     Yeah ima hoe witchu son life n my hands so ill just
             quit talking sh*t lil bruh

       On January 21, 2014, the victim’s father called the Department of Children’s
Services (“DCS”) because he was concerned about the defendant’s threats against his
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son. He also forwarded the text messages to the victim’s mother and the victim’s
grandmother.

       On February 8, 2014, the victim’s grandmother received a telephone call from the
victim’s mother indicating that the victim’s mother wanted to leave the motel. The
victim’s grandmother became concerned and went to the motel, but no one answered the
door of the room in which the victim and his mother were staying. At this point, the
victim’s grandmother called the police, and the police were eventually able to enter the
room with the aid of motel personnel. In the room, they found the defendant, the victim’s
mother, and the victim, who had severe bruising, redness, swelling, and lacerations
around his face and mouth.

       The victim was taken to the hospital. In addition to the injuries around his head,
which Investigator Sara Bruner testified were still not healed in April, doctors discovered
that his body was covered with older injuries and scarring. Most of the white scars and
older injuries exhibited a particular pattern consistent with having been hit repeatedly
with a looped-over belt or cord. The victim had scars on his back, chest, bottom, inner
and outer legs and thighs, and arms. The victim was two and one half years old, and he
was able to communicate and said that the defendant had caused the injuries. He also
indicated that the defendant had burned him with a cigarette.

        Investigator Bruner interviewed the victim’s mother at the time the victim was
taken to the hospital, and the victim’s mother acknowledged having hit the victim with a
belt. Investigator Bruner testified that she had made the defendant aware that she wished
to interview him, but he did not come in for an interview until March. At that time, he
acknowledged he had an anger problem. When shown pictures of the injuries, the
defendant stated, “I didn’t do all of that.” The defendant eventually acknowledged that
he had hit the child with a belt on multiple occasions. Both co-defendants stated that the
victim’s facial injuries were from falling down the stairs and that the other injuries were
inflicted because the victim had difficulty with potty training. Both the victim’s father
and the victim’s grandmother indicated that they had not seen the victim for
approximately one month prior to February 8, 2014, and that the victim had no injuries
the last time they had seen him.

        The victim’s mother and the defendant were both charged with four counts of
aggravated child abuse and two counts of aggravated child neglect. The defendant
agreed to plead guilty to two counts of the lesser included offense of attempted
aggravated child abuse by means of a dangerous instrumentality. The agreement allowed
the trial court to set the length of the sentence within Range I. The agreement also
allowed the trial court to set the release eligibility outside the defendant’s range pursuant

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to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997). At the plea hearing, the defendant
acknowledged that he had struck the toddler with a belt.

       At the sentencing hearing, Investigator Bruner testified regarding the facts of the
crimes. The State introduced photographs of the victim, whose body was covered with
scars and other evidence of beating and abuse. The State also provided the text messages
sent by the defendant, the defendant’s juvenile history, and the presentence report
containing a summary of the police report of the crime. Investigator Bruner noted that
she also observed bruising in the shape of finger marks on the victim’s mother’s arms.
Although the victim’s mother had at first told Investigator Bruner that the defendant
assaulted her, she later asserted that they were in a “pushing match” and that the
defendant was not aggressive toward her.

       The defendant introduced the testimony of Becca Dryden, who testified that the
defendant would qualify for the Emerging Adults program at Park Center. The program
provided employment and education for young adults with mental illnesses. She testified
that the defendant had been diagnosed with a mood disorder and post-traumatic stress
disorder in prison, as well as borderline personality disorder and antisocial personality
disorder. She stated the defendant might also be eligible for housing, but housing would
depend in part on his release date.

       Erica Buggs, the defendant’s mother, testified that he was one of eight children
and that he was a funny, playful child who cared about people. She testified that the
defendant was spanked with a belt or by hand when he misbehaved. She testified that the
defendant had held several jobs since moving out at age nineteen and that the family
would support him in a community corrections program. She denied having seen signs of
mental illness in him and testified that he would never harm or hit his younger siblings.
She acknowledged that he had juvenile convictions for vandalism and attempted burglary
and that he violated his juvenile probation by breaking curfew, missing school, and being
terminated from a drug treatment program. She testified that she took him out of school
when he was eighteen, but later acknowledged that he might have quit school in the ninth
grade. Danielle Patterson testified that the defendant was the father of her two-year-old
child and that he was a good person and would bring her supplies such as diapers when
she asked. She had left her son in the defendant’s care on occasions prior to his
incarceration in August 2014, and she never saw any injuries on her son.

        The defendant testified that what he did was wrong. He described the text
messages he sent to the victim’s father as “childish” and “stupid.” He stated he had been
expelled from high school and then from an alternative school. He acknowledged having
tried to break into two different houses because he was “bored.” He stated that he was
put into DCS custody after the second attempted burglary and treated for depression, and
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he testified that he was currently taking “[s]ome depression pill named Zoloft. It’s like
bipolar and schizophrenia.” He confirmed he was spanked with a belt as a child. He
testified that he had only hit the victim with a belt on two occasions and only struck him
four times. He denied burning the victim with cigarettes or pouring cold water on him
and putting him outside. He stated that if the victim or the victim’s father were there at
the hearing, he would say, “I’m sorry and … I really didn’t have a problem with him. It
was just more like I guess jealousy or hate.” Investigator Bruner testified in rebuttal that
in her interview with him, the defendant had acknowledged striking the victim on five or
six occasions and hitting him three or four times during each occasion.

       The trial court found that various enhancement factors applied in sentencing,
including that the defendant had a previous history of criminal behavior in addition to
that necessary to establish the range and that he was the leader in a crime involving two
or more actors. See T.C.A. § 40-35-114(1), (2). The court found the victim was so young
that he could not seek help and that he was accordingly particularly vulnerable due to
age. See T.C.A. § 40-35-114(4). The trial court found the defendant had treated the
victim with exceptional cruelty, noting the extent of the scarring and abuse and the fact
that the defendant apparently punished the victim for urinating and defecating. See
T.C.A. § 40-35-114(5). The trial court cited to the text messages as evidence that the
crime was committed to gratify the defendant’s desire for pleasure or excitement, and the
court found the defendant had previous violations of the conditions of his juvenile
probation. See T.C.A. § 40-35-114(7), (8). It also found that the defendant abused a
position of trust in committing the crime and that he had juvenile convictions which
would correspond to felonies. See T.C.A. § 40-35-114(14). In mitigation, the trial court
rejected the argument that the defendant’s youth excused his conduct or that he did not
have sustained intent to commit the crimes, noting the fact that the injuries were in
various stages of healing. See T.C.A. § 40-35-113 (6), (11). The trial court rejected the
defendant’s argument that he believed the abuse was appropriate parenting or that his
mental health was a mitigating factor, noting he had only recently been diagnosed with
any disorder and that it was primarily antisocial ADHD or bipolar disorder. The trial
court considered as a mitigating factor that the defendant acknowledged responsibility by
pleading guilty. See T.C.A. § 40-35-113(13). It sentenced the defendant to twelve years
on each count, with a forty-five percent release eligibility date. The trial court ordered
the sentences to be run concurrently.


                                       ANALYSIS

       On appeal, the defendant argues that the trial court erred in deciding the aggregate
sentence because it is inconsistent with the purposes and principles of sentencing. As
part of his legal argument, he asserts that the trial court erred in rejecting three of the
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mitigating factors and in enhancing the sentence based on the finding that the defendant
was the leader in the commission of an offense involving two or more criminal actors and
that the defendant committed the crime to gratify the defendant’s desire for pleasure or
excitement.

       This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
that reflect a proper application of the purposes and principles of our Sentencing Act.”
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will uphold the sentence “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. Even if the trial court “recognizes and enunciates several applicable mitigating
factors, it does not abuse its discretion if it does not reduce the sentence from the
maximum on the basis of those factors.” State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008). The trial court is “to be guided by — but not bound by — any applicable
enhancement or mitigating factors when adjusting the length of a sentence.” Bise, 380
S.W.3d at 706. Further, “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. A sentence imposed by the trial court that
is within the appropriate range should be upheld “[s]o long as there are other reasons
consistent with the purposes and principles of sentencing as provided by statute.” Id.
The appealing party bears the burden of proving that the sentence was improper. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining the sentence, the trial court must consider: (1) any evidence
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 applicable 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; and (7) any statement the defendant wishes to make in
the defendant’s own behalf about sentencing. T.C.A. § 40-35-210(b) (2010).

        “The sentence imposed should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed,” and “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(4), (5).
The defendant asserts that the trial court misapplied some of the enhancement and
mitigating factors and that because he has a large family and “potential for rehabilitation”
the sentence he received is not the least severe measure necessary to achieve the purposes
of sentencing.
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       The trial court chose to sentence the defendant to the maximum in the range based
on the finding of numerous enhancement factors, many of which the defendant does not
contest. The court found that the circumstances of the crime were particularly shocking,
horrifying, and reprehensible and that the defendant would most likely have been
convicted as charged of multiple counts of aggravated child abuse of a child under eight
years old, a Class A felony, had he gone to trial. The court noted that it gave the great
weight to the fact that the child was only two years old and unable to seek help and to the
fact that the defendant treated the child with exceptional cruelty, by his own admission
beating the toddler whenever he urinated or defecated. In Bise, the trial court misapplied
the single enhancement factor supporting the sentence. Bise, 380 S.W.3d at 708. The
sentence was nevertheless upheld because the trial court had based the decision on its
determination of the need for deterrence and the defendant’s potential for rehabilitation.
Id. at 709. Here, the trial court properly considered the purposes and principles of
sentencing, concluding that the crime was particularly reprehensible and that confinement
was necessary to avoid depreciating the seriousness of the offense. The trial court
applied several enhancement factors, many of which the defendant does not contest. We
conclude there was no abuse of discretion.


                                    CONCLUSION

       Because we conclude the trial court did not abuse its discretion, we affirm the
sentences.



                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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