         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     May 8, 2001 Session

                   STATE OF TENNESSEE v. LAVERNE LONG

                      Appeal from the Criminal Court for Shelby County
                         No. 99-10023    Arthur T. Bennett, Judge



                     No. W2000-02773-CCA-R3-CD - Filed July 13, 2001


The Defendant, Laverne Long, entered a guilty plea to reckless homicide, a Class D felony, in
exchange for a two year sentence as a Range I, standard offender. Following an evidentiary hearing
on the Defendant’s motion to suspend her sentence, the trial court denied alternative sentencing. The
Defendant now appeals as of right from the denial of alternative sentencing. We find no error; thus,
we affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN, J. and L.T.
LAFFERTY, SR.J., joined.

William Gosnell, Memphis Tennessee, for the appellant, Laverne Long.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       In July 1999, the Defendant worked as a van driver for Children’s Palace Learning Academy,
a daycare provider in Shelby County, Tennessee. Rita Hugghis worked as the child attendant on the
van. Both the Defendant and Ms. Hugghis worked split shifts: they worked from approximately
6:00 a.m. until 8:30 a.m. picking up children and taking them to the daycare center, and then they
returned in the afternoon to take the children home.

       On July 21, 1999, the Defendant and Ms. Hugghis worked their regular morning shift and
“clocked out” about 8:30 a.m. The Defendant returned about 3:50 p.m., and Ms. Hugghis returned
about 4:00 p.m. After Ms. Hugghis returned, she discovered the body of Darnecia Slater, a twenty-
two-month-old girl, in the daycare van. The child had been left in the van for approximately seven
and one-half hours on a hot summer day, and she died from the heat inside the van. Both the
Defendant and Ms. Hugghis pled guilty to reckless homicide for their actions in failing to ensure that
Darnecia Slater was removed from the van.

       At the hearing, the Defendant testified that she and Ms. Hugghis arrived at the daycare center
before 8:30 a.m. on July 21. When the Defendant arrived, she got out of the van and took the
children who were already out of the van inside to get breakfast. She left Ms. Hugghis in the van
with the three toddlers who were still in the van. Although the Defendant typically checked behind
Ms. Hugghis to make sure that all the children were removed from the van, she did not do so on this
day because she had an appointment and was in a hurry. She asserted that it was Ms. Hugghis’ job
to make sure that the children got off the van.

        The Defendant testified that she had previously worked as a daycare van driver for Heritage
Daycare Center, and she admitted that she had been reprimanded at least once by that center for
leaving children on the van. She also admitted that she had pled guilty to a drug charge in 1988 or
1989. The presentence report reflects that in 1990 the Defendant pled guilty to possession of cocaine
with intent to sell, and she was sentenced to three years probation. The Defendant testified that she
had a drug problem at that time and that she sought and received help for the problem. She said she
became drug and alcohol free and that she had not had any more problems with the law. At the time
of the hearing, the Defendant was thirty-six years old. She testified that she had four children,
ranging in age from fourteen to eighteen. She was employed as a resident manager at Windgate
Apartments.

       Karen Luvaas, a child protection investigation team coordinator for the Memphis Child
Advocacy Center, testified on behalf of the State. She explained that at the request of the State, she
had collected data regarding children being left in vehicles in Shelby County. According to Ms.
Luvaas, there were nine reported incidents of children left unattended in vehicles in 1998: six were
by parents or guardians, two were by daycare staff, and the cause of one was unknown. In 1999,
there were twenty-three reported instances: nineteen were by parents or guardians, and four were
by daycare staff. From the beginning of 2000 until May 5, 2000, there were six reported instances:
four were by parents or guardians, one was by daycare staff, and the cause of one was unknown.

       Following the hearing, the trial court found that granting the Defendant an alternative
sentence would depreciate the seriousness of the offense. The court specifically noted that the
Defendant was entrusted with the custody and care of children and that she had previously been
reprimanded by her former employer for leaving a child unattended in a daycare vehicle. While the
Defendant testified that she regularly checked behind Ms. Hugghis to ensure that all the children
were off the van, she suggested that it was not her responsibility to do so. The trial court thus
determined from the Defendant’s testimony “that she is evasive and shifts the blame elsewhere.”
Because of the shocking nature of the crime and the Defendant’s failure to acknowledge her
culpability, the trial court found that granting probation or other alternative sentencing would
depreciate the seriousness of the offense.




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        The trial court also found that confinement was necessary to provide an effective deterrence.
In recognizing the problems with child supervision in Memphis daycare centers, the court pointed
to the statistics cited by Ms. Luvaas in her testimony regarding children left unattended in daycare
vehicles by daycare staff. The court also noted that the State of Tennessee was considering new
regulations for Shelby County daycare centers because of this problem. The court found that the
Defendant should serve as an example to other daycare employees such that they will understand the
magnitude of their responsibility. The court thus stated, “Applying the deterrence factor in the
instant case will best convey to Shelby County day care employees that they are subject to criminal
culpability for failing in their responsibilities.” The trial court accordingly denied the Defendant’s
request for a suspended sentence and ordered her to serve her sentence in confinement.

        On appeal, the Defendant argues that she should have been granted an alternative sentence,
specifically probation. When an accused challenges the length, range, or manner of service of a
sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption 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, 169 (Tenn. 1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         After reviewing the record below, we conclude that the trial court imposed a lawful sentence
after giving due consideration to appropriate and applicable sentencing principles. In addition, the
trial court’s findings of fact are adequately supported by the record. Thus, we affirm the trial court’s
denial of alternative sentencing.

        A defendant who “is an especially mitigated or standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence
of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462


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(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated § 40-35-
103(1), which sets forth 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[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

        A defendant is eligible for probation if the actual sentence imposed upon the defendant is
eight years or less and the offense for which the defendant is sentenced is not specifically excluded
by statute. Id. § 40-35-303(a). Probation is to be automatically considered as a sentence alternative
for eligible defendants; however, the burden of proving suitability for probation rests with the
defendant. Id. § 40-35-303(b). In determining whether to grant probation, the court must consider
the nature and circumstances of the offense; the defendant’s criminal record; his or her background
and social history; his or her present condition, including physical and mental condition; the
deterrent effect on the defendant; and the likelihood that probation is in the best interests of both the
public and the defendant. See Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974); State v. Kendrick,
10 S.W.3d 650, 656 (Tenn. Crim. App. 1999).

        Here, the trial court found that the Defendant was entitled to the presumption of alternative
sentencing but that the presumption had been rebutted because alternative sentencing would
depreciate the seriousness of the offense and because confinement is particularly suited to provide
an effective deterrent to others likely to commit the offense. The court determined that the
Defendant should not be granted probation for the same reasons. We are unable to conclude that the
court erred or abused its discretion in sentencing the Defendant.

       Generally, to deny probation or another alternative sentence based on the seriousness of the
offense, 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” an alternative sentence. State v. Cleavor, 691 S.W.2d 541, 543 (Tenn.



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1985) (citation omitted); see also State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).

          We agree with the trial court that the circumstances surrounding this offense are particularly
shocking and reprehensible and that the nature of the offense outweighs the factors favoring
probation or another alternative sentence. The Defendant pled guilty to reckless homicide for her
participation in circumstances leading to the death of Darnecia Slater, a twenty-two-month-old child.
The Defendant was charged with the responsibility of picking up young children and delivering them
to the daycare center. She clocked out and left on July 21, 1999, while young Darnecia Slater was
still strapped into her car-seat. Due to her tender age, the child was unable to free herself from the
car-seat or otherwise remove herself from the van. Her well-being was entirely dependant upon the
care and attention of others. Because the Defendant did not fulfill her responsibility of safely
delivering Darnecia Slater into the daycare center, the child remained in the stifling hot van for seven
and one-half hours, where she ultimately died from the heat in the van.

         Additionally, our supreme court has stated that “trial testimony that the defendant
acknowledged little culpability for his [or her] actions supports a finding that a sentence of
confinement is necessary to avoid depreciating the seriousness of” the offense. State v. Gutierrez,
5 S.W.3d 641, 646 (Tenn. 1999). The trial court in this case specifically found that the Defendant
failed to acknowledge her culpability. During the hearing, the Defendant testified that she routinely
checked behind the van attendant to make sure the children were off the van, but she did not do so
in this instance. She asserted that her job was to drive the van, not to the get the children off the van.
Also, the Defendant had been previously reprimanded at her prior job as a van driver for leaving
children on a van. Thus, the evidence supports the trial court’s finding that the Defendant failed to
acknowledge her culpability and that a sentence of confinement was necessary to avoid depreciating
the seriousness of the offense.

        The evidence also supports the trial court’s finding that confinement is particularly suited to
provide an effective deterrence to others likely to commit similar offenses. In State v. Hooper, 29
S.W.3d 1 (Tenn. 2000), our supreme court recognized the “imprecision” of the “science” of
deterrence and stated that “trial courts should be given considerable latitude in determining whether
a need for deterrence exists and whether incarceration appropriately addresses that need.” Id. at 10.
The court then maintained that the appellate courts will
        presume that a trial court’s decision to incarcerate a defendant based on a need for
        deterrence is correct so long as any reasonable person looking at the entire record
        could conclude that (1) a need to deter similar crimes is present in the particular
        community, jurisdiction, or in the state as a whole, and (2) incarceration of the
        defendant may rationally serve as a deterrent to others similarly situated and likely
        to commit similar crimes.

Id. The record in this case supports the conclusions that there is a need to deter similar crimes in the
Shelby County area and that the incarceration of the Defendant may rationally serve as a deterrent
to others similarly situated.



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         Karen Luvaas testified that the instances of children being left unattended in vehicles had
risen from nine cases in 1998 to twenty-three cases in 1999. In 1998, two cases involved daycare
staff; in 1999 four cases involved daycare staff. Between January and May of 2000, six instances
had been reported, one of which involved daycare staff. These statistics are a proper consideration
in determining the need for deterrence, and they indicate the need to deter daycare staff from
neglecting their duties to care for the children of Shelby County. See id. at 10-11. Also, the record
reflects the enormous amount of publicity surrounding the death of Darnecia Slater and the
Defendant’s involvement in the child’s death. The publicity was such that the Defendant filed a
motion for a change of venue due to the excessive publicity surrounding her case. Because of this
extensive publicity, the Defendant’s sentence is likely to be known by the general public, making
a sentence of confinement more likely to deter similar conduct by others who might otherwise
neglect the duty of care they owe to children in daycare centers. See id. at 11. In addition, the
supreme court has stated that “[r]epeated occurrences of the same type of criminal conduct by a
defendant generally warrant a more emphatic reminder that criminal actions carry consequences.”
Id. at 12. While the statute only refers to the need for general deterrence, the supreme court noted
that “general deterrence is possible only after specific deterrence has first been achieved.” Id. Thus,
specific deterrence is another factor which may be considered when determining the need for
deterrence. Here, the Defendant had previously been reprimanded for neglecting children by leaving
them in a daycare van, yet she again failed to ensure that all the children were safely off the van the
day that Darnecia Slater died. Therefore, the need for specific deterrence is evident in this case as
well.

       Accordingly, we conclude that the trial court properly denied alternative sentencing based
on the need for deterrence and the need to avoid depreciating the seriousness of the offense. The
judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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