                                                                                        08/16/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2017

         STATE OF TENNESSEE v. KRISTIE LOUISE MCLERRAN

                  Appeal from the Criminal Court for Clay County
                   No. 2011-CR-55 David A. Patterson, Judge
                     ___________________________________

                           No. M2016-02005-CCA-R3-CD
                       ___________________________________


The Defendant, Kristie Louise McLerran, entered a plea of nolo contendere to attempted
aggravated child neglect, a Class B felony, as a Range I, standard offender and to serve
an eight-year term with manner of service to be determined by the trial court. At the
sentencing hearing, the trial court imposed a term of incarceration, finding that
confinement was necessary to avoid depreciating the seriousness of the offense. The
Defendant appeals the trial court’s denial of alternative sentencing. We conclude that the
trial court did not err in sentencing the Defendant to a term of imprisonment.
Accordingly, we affirm the judgment of the trial court.

 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 JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Kristie Louise McLerran.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Bryant C. Dunaway, District Attorney General; and Mark Gore, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       Although the plea submission hearing transcript is not included in the record, we
glean the following facts from the allegations contained in the indictments against the
Defendant and testimony provided at the sentencing hearing. Between January 1, 2011,
and February 8, 2011, the Defendant and her husband, Mr. Timothy Curtis Bailey,
neglected their two month old infant’s health and welfare and caused serious bodily
injury to the infant who is the victim. On October 29, 2013, a Clay County Grand Jury
indicted the Defendant and Mr. Bailey on one count of aggravated child neglect and four
counts of aggravated parental or custodial child endangerment. On May 23, 2016, the
Defendant entered a plea of nolo contendere to attempted aggravated child neglect, a
Class B felony. See T.C.A. §§ 39-12-107(a), 39-15-401(b) (2010), 39-15-402(a)(1), (b)
(2010). Pursuant to the plea agreement, the Defendant was to receive an eight-year
sentence as a Range I, standard offender, and a sentencing hearing was to be held to
determine whether the Defendant would serve her sentence in confinement or on
probation.

        At the August 9, 2016 sentencing hearing, Tiffany Lawson, a probation officer,
testified that she prepared the Defendant’s pre-sentence investigation report, which was
admitted into evidence. She also testified that the Defendant did not report to the
scheduled in-person meeting to prepare the report but rather mailed her the information
instead. Ms. Lawson read from the Defendant’s statement. The Defendant wrote that she
gave birth to the victim in December 2010, that the victim was premature, and that she
breastfed the victim. The Defendant stated that her “milk was 16.2 when it’s supposed to
be 22.1” and that “[t]he doctors thought I starved him, but would never do that to my
child or any child.” Ms. Lawson stated that there were no mitigating factors to note in
the pre-sentence investigation report. She also stated that the Defendant’s prior criminal
history included a criminal trespass conviction, which she served on probation, and some
traffic citations. She testified that as of the time of the hearing, the Defendant had failed
to submit a urine sample for drug screening. She also testified that the Defendant had
completed a treatment program as required by the Department of Children’s Services
and, although unverified, was employed.

        On cross-examination, Ms. Lawson testified that the Defendant had been released
on bond for almost five years and that there was no indication that the Defendant had
issues complying with the terms of her bond. Ms. Lawson also testified that the report
contained a summary of the facts culled from the medical records regarding the child
neglect. She stated that the victim was born around December 12, 2010, and that the
Defendant and victim were released from the hospital on December 16. The Defendant
had an appointment with Dr. Mark Langenberg on December 28 and a follow up visit to
the health department two days later. The Defendant missed several scheduled doctor’s
visits before going to the doctor thirty-seven days after her last visit with Dr. Langenberg.
Dr. Langenberg noted that the victim was malnourished and told the Defendant to have
the victim admitted to the hospital, where Dr. Sandra Moutsios treated the victim. Ms.
Lawson stated that the medical reports indicated that the child’s “failure to thrive” was
                                            -2-
due to a lack of nutrition and not attributable to any other reason. She also stated that Dr.
Moutsios indicated concern over a positive drug screen result from the Defendant’s breast
milk. Defense counsel introduced a note from Dr. Ashley Toriac, a pediatrician from the
hospital, that stated that the Defendant’s positive drug screen was a false positive and that
the breast milk was “normal.” Ms. Lawson testified that the Defendant reported pumping
breast milk for the victim and giving the victim supplemental milk. She also testified that
the Defendant missed their first scheduled meeting for completing the sentencing report
questionnaire because the Defendant’s husband had been arrested and that the Defendant
missed their second scheduled meeting because she overslept.

       Dr. Sandra Moutsios, who was accepted by the trial court as an expert in
pediatrics, testified that part of her role as a pediatrician is to identify child abuse victims
and consult in their treatment. She testified that on February 8, 2010, the victim was
admitted into the pediatric intensive care unit (PICU). On February 10, 2010, Dr.
Moutsios met with the victim in her role as an abuse care consultant. She stated that
upon arrival at the emergency room, the medical staff noticed that the victim was
“severely underweight.” She also stated that the victim had a glucose level of 27 and was
admitted to the PICU for “profound malnutrition, failure to thrive, and life threatening
hypoglycemia.” Dr. Moutsios explained that a normal gluscose level is between 70 and
110 and that the victim’s hypoglycemia “put him at a high risk for seizure and
hypoglycemic coma,” which can be life threatening. She also explained that failure to
thrive is when an infant is unable to gain weight. She testified that upon the victim’s
admission to the emergency room, the victim weighed five pounds and one ounce,
compared to his birth weight of five pounds and eleven ounces. She also testified that
there was no other “organic cause for his failure to gain weight.”

       In response to questioning by the trial court, Dr. Moutsios explained that the
victim “was born four weeks early and in the last month of a pregnancy is when a lot of
the extra fat stores come on a baby.” She read from the summary of her report that she
drafted during her care for the victim, which stated, in part:

       I’m concerned that the parents are simply not feeding this child enough for
       him to survive. Furthermore, that they have not recognized that he is
       extremely malnourished, which I believe is obvious to a layperson who
       looks at this child. … They’ve missed five appointments for medical care
       per their [primary care provider’s (PCP)] recommendation, resulting in
       significant medical neglect.

       Dr. Moutsios continued to read from her notes, which stated:



                                             -3-
      Infant was seen by his PCP a few days after birth and they were about to
      come back for a weight check. Mom states they were unable to keep [two]
      appointments that were scheduled due to snow days. They kept their
      routine scheduled [two] month appointment which is the visit the PCP sent
      them to Vanderbilt. At that visit, mom had no complaints or concerns
      about his growth. Dr. Moutsios spoke with the PCP [on February 10, 2010,
      at 5:00 p.m.] to get his perspective from any prior concerns. [Dr.
      Landenberg] states mom cancelled five [] appointments prior to their visit
      this past week. He states that in the interim mom would text him with
      questions. He recalls her saying, “His eyes rolled back in his head for one
      second, should I worry?” to which he replied if you’re concerned[,] bring
      him in for me to see him[,] which she did not. At their visit on [February 8,
      2011], they were instructed to come directly from his office to Vanderbilt.
      At the end of the workday, they had still not arrived at Vanderbilt. He was
      concerned enough to call the Celina Police Department to investigate their
      whereabouts. …

      Dr. Moutsios testified that during her care for the victim, she was accompanied by
a medical student, who was in her mid-twenties and did not have children. The student
began to cry upon seeing the victim. She testified that in her report, she described the
victim as having a “[d]isturbingly wasted appearance, emaciatingly thin, temporal
wasting, no subcutaneous fat in his arms, legs, or buttocks.”

       On cross-examination, defense counsel read from Dr. Moutsios’s report that said,
“The positive drug screen on [the Defendant’s] breast milk suggests that she is using
multiple substances that may impair her judgment and impair her ability to parent
appropriately. I am concerned that neither parent recognizes that [the victim] is
emaciated and profoundly malnourished.” Dr. Moutsios testified that she was concerned
because the Defendant was not troubled by the victim’s failure to gain weight. She
admitted that it was possible that her opinion regarding the Defendant’s judgment was
influenced by the drug screen results. She also admitted that the drug screen was a false
positive. She testified that after Dr. Langenberg told the Defendant to take the victim to
the emergency room, the Defendant took the victim to the emergency room the same day
but not immediately. Dr. Moutsios also testified that both the Defendant and the victim’s
father were cooperative and answered all of her questions. She stated that following the
secondary newborn screen, she concluded that the victim’s poor physical health was
caused only by a deficit of calories. She also stated that the victim lived with the
Defendant, his father, and three half-siblings.




                                          -4-
      Lieutenant Rick Lisi with the Clay County Sheriff’s Office testified that at the
time of the sentencing hearing, the Defendant had an outstanding warrant in Overton
County, Tennessee.

        Ms. Patricia Copas, the Defendant’s aunt, testified that the Defendant has a
general education diploma (GED) and was employed. Ms. Copas, however, could not
recall where the Defendant worked. She stated that she believed that the Defendant had
five children. She also stated that the Defendant gave birth to two children during the
five-year period between the time of her release on bond and the sentencing hearing. Ms.
Copas described the Defendant as “an excellent mom” to her two youngest children who
were in the Defendant’s custody. She said the Defendant was attentive to her children’s
needs and a hard worker. Ms. Copas testified that she did not know the Defendant to get
into trouble often. She also testified that the Defendant’s three oldest children were in the
custody of their respective fathers and that the Defendant had visitation with them. She
stated that while the victim was in the Defendant’s care, the Defendant was “attentive”
and breastfed the victim. Ms. Copas did not see the Defendant use formula to
supplement the victim’s diet. Ms. Copas testified that she never saw the Defendant abuse
the victim or be inattentive to the victim. She was shocked when she learned that the
Defendant had been indicted for neglecting the victim. She stated that after the
Defendant was arrested and the victim was removed from her custody, the Defendant’s
world had been torn apart, stating that her children “were her life.” She testified that the
Defendant was doing a “pretty good job” of putting “her life back together.” She also
testified that the Defendant fed her two youngest children in the same manner as she fed
the victim. She stated that the Defendant was poor and lacked the resources to secure
regular access to transportation.

       On cross-examination, the prosecutor showed Ms. Copas a photograph of the
victim. Ms. Copas stated that the victim looked “critical” and “real premature.” The
prosecutor asked whether Ms. Copas noticed any fat on the victim’s body, and Ms. Copas
stated that she only saw fat around the victim’s knees and rib cage. She also stated that
while visiting the Defendant at the Defendant’s house, she saw the Defendant feed the
victim “when he was hungry.” She testified that the Defendant lived within walking
distance to the local hospital. She also testified that to her knowledge, the Defendant was
not using drugs during her care of the victim.

        In her allocution, the Defendant stated that she had her GED and attended almost
one year of college to be a pharmacy technician. She also stated that she was twenty-four
years old when she gave birth to her fourth child, the victim. She said that the victim was
the first child that she gave birth to who was premature. She also said that she decided to
breastfeed the victim because her other children “did really well” being breastfed. She
admitted to missing doctor’s appointments, explaining that she was not wealthy,
                                            -5-
struggled, and worked every day. She stated that she has a three-year-old girl and a
fifteen-month-old infant at home. She also stated that she does not have visitation with
her older children. She concluded by stating, “I wouldn’t hurt my child. I wouldn’t hurt
no child for that matter.”

        Following the conclusion of proof, the trial court noted that the Defendant had
failed to submit to urinalysis for drug screening prior to the sentencing hearing. The trial
court found that the Defendant’s offense involved a victim that was particularly
vulnerable due to his infancy, on which the trial court placed “great weight.” T.C.A. §
40-35-114(4) (2011). The trial court also found that the “nature of the neglect” was
concerning because the victim was “almost dead” and the Defendant failed to recognize
the problem. The trial court noted that the picture of the victim was “disturbing.” The
trial court credited Dr. Moutsois’ testimony where she characterized the victim as
“profoundly” malnourished, which went unrecognized by the Defendant and caused Dr.
Moutsois’s intern to cry upon sight of the victim. The trial court found that the
Defendant abused her position of private trust which significantly facilitated the
commission of the offense. Id. § 40-35-114(14). The trial court remarked that the
Defendant “did not want the child.” The trial court found that there was no explanation
for the victim’s physical condition other than he was not fed. The trial court noted that it
was “happy” that the Defendant was not in a position of trust for the victim or her three
other children anymore.

       The trial court voiced concern over the Defendant’s “amenability of correction.”
The trial court stated that it believed that the Defendant did not report in person to her
probation officer because she knew she would have to submit a urine sample for drug
testing, which would come back positive. The trial court found that the Defendant’s
failure to submit to a drug screen was an indication that she was not amenable to
correction and, thus, probation was inappropriate. The trial court noted that the State
highlighted that this was an uncommon offense and that the charge in the indictment was
a Class A felony. Id. § 39-15-402(b). The trial court found that confinement was
“necessary to avoid depreciating the seriousness of the offense.” Id. § 40-35-103(1)(B).
The trial court agreed with defense counsel’s argument that there was not a need to deny
alternative sentencing on the basis of deterrence because “we don’t have a lot of cases
like this.” The trial court concluded by stating that it considered “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-
35-103(4). Moreover, the trial court did not apply any mitigating factors. Id. § 40-35-
113.

       Following its findings, the trial court sentenced the Defendant to a term of
incarceration to be served for eight years at thirty percent. The Defendant appeals.

                                           -6-
                                       ANALYSIS

       On appeal, the Defendant challenges the trial court’s denial of alternative
sentencing. The Defendant contends that the trial court erred in its decision because (1)
she does not have a long or serious criminal history; (2) she successfully completed a
previous sentence on probation; (3) she complied with the terms of her bail for the instant
charge; (4) the trial court failed to properly consider mitigating factors; (5) there was no
evidence to suggest that she intentionally or knowingly neglected the victim; (6) she
brought the victim to the hospital after being told to do so; (7) there was no evidence of
neglect to any of her other five children, making neglect of the victim “somewhat
inconceivable”; (8) she gave birth to two children while on bail prior to her guilty plea,
and those children will not be able to be raised by their mother; and (9) her confinement
will not act as a deterrence and will not act to prevent the depreciation of the seriousness
of the offense. The State argues that the trial court did not abuse its discretion. We agree
with the State.

       A trial court’s decision regarding the length and manner of service of a sentence is
reviewed for abuse of discretion, with a presumption of reasonableness granted to within-
range sentences reflecting a proper application of the purposes and principles of the
Sentencing Act.         State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).
Under Bise, “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” Id. at 706. A sentence within the appropriate range will be upheld so long as
“there are other reasons consistent with the purposes and principles of sentencing.” Id.

        Tennessee Code Annotated section 40-35-104 authorizes alternative sentences,
which may include a sentence of confinement that is suspended upon a term of probation
or a sentence of continuous or periodic confinement in conjunction with a term of
probation. T.C.A. § 40-35-104(c)(3), (4), (5). A defendant is eligible for probation if the
sentence imposed is ten years or fewer. Id. § 40-35-303(a). Although “probation shall be
automatically considered by the court as a sentencing alternative for eligible defendants,”
the defendant bears the burden of “establishing suitability” for probation. Id. § 40-35-
303(b). “This burden includes demonstrating that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)). The Tennessee Supreme Court explicitly applied the abuse of
discretion standard of review in Bise to alternative sentencing in State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (“[T]he abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.”).
                                           -7-
      Tennessee Code Annotated section 40-35-103 requires that sentences involving
confinement be based on the following considerations:

       (A) Confinement is necessary to protect society by restraining a Defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the Defendant[.]

T.C.A. § 40-35-103(1).

        Here, the trial court based its determination that the Defendant should be confined
upon finding that incarceration was “necessary to avoid depreciating the seriousness of
the offense.” Id. § 40-35-103(1)(B). If a trial court imposes a sentence of incarceration
based on the seriousness of the offense, “‘the circumstances of the offense as committed
must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of
an excessive or exaggerated degree,’ and the nature of the offense must outweigh all
factors     favoring      a    sentence      other    than     confinement.”     State    v.
Trotter, 201 S.W.3d 651, 654 (Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514,
520 (Tenn. Crim. App. 1997). Moreover, a trial court may not consider factors that
constitute elements of the offense in determining whether the circumstances of an offense
satisfy this standard. See Housewright, 982 S.W.2d at 358 (citing State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 10 (Tenn. 2000)).

       The trial court characterized the victim’s appearance caused by the Defendant’s
neglect as “disturbing.” The trial court found that the Defendant’s neglect left the victim
“almost dead.” The trial court highlighted Dr. Moutsios’s testimony where she described
how her intern cried upon seeing the victim in his “profoundly malnourished” state. We
hold that the trial court made appropriate findings to support the conclusion that the
“circumstances of the offense” were “‘especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree.’”
Trotter, 201 S.W.3d at 654 (quoting Grissom, 956 S.W.2d at 520).

      Moreover, “enhancement and mitigating factors are relevant to the trial court’s
determination of the manner in which a felony sentence is to be served.” See State v.
Souder, 105 S.W.3d 602, 606 (Tenn. Crim. App. 2002) (citing State v. Bolling, 75
                                           -8-
S.W.3d 418, 421 (Tenn. Crim. App. 2001)). When determining whether probation is
appropriate it is proper “to look behind the plea bargain and consider the true nature of
the offenses committed.” State v. Pierce, 138 S.W.3d 820, 828 (Tenn. 2004)
(quoting Hollingsworth, 647 S.W.2d at 939). A trial court should consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. T.C.A. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should
impose a sentence that is “no greater than that deserved for the offense committed” and is
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).

       Here, the trial court placed significant weight in its finding that the Defendant’s
sentence should be enhanced because the victim “was particularly vulnerable” due to his
infancy. Id. § 40-35-114(4). The trial court also enhanced the Defendant’s sentence
because she abused her position of private trust with the victim “in a manner that
significantly facilitated the commission or the fulfillment of the offense.” Id. § 40-35-
114(14). Moreover, although the trial court considered the mitigating factors that the
Defendant brought to the court’s attention, the trial court did not find that any mitigating
factors applied.

      Next, the trial court “look[ed] behind the plea bargain.” Pierce, 138 S.W.3d at
820. The Defendant was charged with aggravated child neglect, which is a Class A
felony and, thus, ineligible for alternative sentencing. The trial court found that
aggravated child neglect is “a serious offense” and that “the good work of a very, very
good attorney” allowed the Defendant to plead guilty to a lower felony classification.

        Third, the trial court found that the Defendant was not amenable to rehabilitation.
See T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438. The trial court based its finding
on the Defendant’s refusal to report in person to her probation officer. Moreover, the
trial court found that the Defendant did not wish to report in person because she knew she
would be forced to submit to a drug screening, which would test positive for drugs.

       Finally, the trial court specifically found that it was imposing “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” See
T.C.A. § 40-35-103(2), (4). Based on our review of the trial court’s findings, we hold
that none of them favored the Defendant’s request for alternative sentencing.
Accordingly, we hold that the trial court properly determined that “the nature of the
offense,” thus, “outweigh[ed] all factors favoring a sentence other than confinement.”
Trotter, 201 S.W.3d at 654. We conclude that the trial court did not abuse its discretion
in denying the Defendant’s request for an alternative sentence and imposing a sentence of
confinement.
                                           -9-
                              CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.



                                     ____________________________________
                                    JOHN EVERETT WILLIAMS, JUDGE




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