         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 17, 2003

            STATE OF TENNESSEE v. DELSIE LUCILLE SARTAIN

                  Direct Appeal from the Circuit Court for Bedford County
                             No. 14954     Charles Lee, Judge



                  No. M2002-02617-CCA-R3-CD - Filed December 23, 2003


The Appellant, Delsie Lucille Sartain, was convicted by a jury for the reckless aggravated assault
of a five-month-old baby, which resulted in permanent injuries. Following a sentencing hearing, the
trial court imposed a sentence of three years and two months incarceration as a range I standard
offender. Sartain appeals the sentencing decision, arguing that the trial court erred by ordering a
sentence of total confinement rather than the less restrictive alternative of probation. After review,
we find no error and affirm the judgment of the Bedford County Circuit Court.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Donna Leigh Hargrove, District Public Defender; Curtis H. Gann, Assistant Public Defender,
Shelbyville, Tennessee, for the Appellant, Delsie Lucille Sartain.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Christine M.
Lapps, Assistant Attorney General; William Michael McCown, District Attorney General; and
Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

       Tina Bailiff employed the Appellant to care for her two small children, twenty-two-month-
old Meaghan and five-month-old Nathan, while she worked at a local factory. This arrangement
began on Monday, July 9, 2001. On Friday, July 13th, Mrs. Bailiff left the children with the
Appellant at approximately 2:15 p.m. Since Mrs. Bailiff was working twelve-hour shifts on Friday
and Saturday, the two had agreed that the Appellant would keep the children until Sunday morning.
Between 10:00 and 11:00 a.m. on Saturday morning, July 14th, Mrs. Bailiff called the Appellant to
check on the children. The Appellant told her that both Nathan and Meaghan were fine but she
needed a can of formula for Nathan. Mrs. Bailiff went to the Appellant’s home with a can of
formula between 2:00 and 2:15 p.m. Both children were fine. Mrs. Bailiff then went to work.

        At approximately 10:00 p.m., the Appellant phoned Mrs. Bailiff at work and informed her
“that something was wrong with Nathan; he wasn’t breathing exactly right.” Upon arrival, Mrs.
Bailiff found that Nathan could not hold his head up, “hold his eyes open,” and was “gasping for
air.” The Appellant claimed that Meaghan hit Nathan with a toy and fell on his chest. She stated
that Nathan later became ill while eating some carrots. Mrs. Bailiff immediately took Nathan to the
Bedford County Hospital, where he was “LifeFlighted” to Vanderbilt Hospital in Nashville. At
Vanderbilt, Nathan exhibited injuries consistent with “Shaken Baby Syndrome.” He suffered from
“subdural hematomas, frontoparietal contusions, retinal hemorrhages, and seizures. He was placed
on a respirator. Later he was placed in a drug induced coma to control his seizures.” According to
Dr. Mary Taylor, a Vanderbilt pediatric critical care unit physician, Nathan’s symptoms indicated
that he had sustained a life threatening brain injury. Nathan remained hospitalized for three and one-
half weeks at Vanderbilt.

        During questioning by the Bedford County Sheriff’s Department, the Appellant admitted to
shaking the five-month-old baby. She explained that, after Meaghan fell on Nathan, “she was scared,
and his eyes were closed, and she was afraid he was hurt and she shook him until his eyes opened.”
She also claimed that she did not recall how hard she shook him. The Appellant also made a written
statement, in which she admits that she “shook him until he opened his eyes, at the same time calling
his name.”

         On August 20, 2001, the Appellant was indicted for aggravated child abuse. At trial, Mrs.
Bailiff testified that Nathan was still receiving treatment and that she had to quit her job to care for
him. She also testified that Nathan, who was then nearly a year and one-half old, received physical,
occupational, and speech therapy four days a week but still could not walk, talk, or feed himself. She
stated that, in order to “get around,” Nathan “takes his left arm and he pulls himself. He scoots on
his behind and he pulls himself across the floor.” According to Mrs. Bailiff, “the right side of his
face kind of droops. You can tell he has had a small stroke.” The Appellant testified on her own
behalf at trial. Following the conclusion of proof, the jury found the Appellant guilty of the lesser
included offense of reckless aggravated assault.

        A sentencing hearing was held September 16, 2002. The presentence report reflected one
felony theft conviction in 1992, which involved the Appellant stealing pencils from her employer.
Ms. Laura Prossor, a presentence officer with the Board of Probation and Parole, testified that,
during her investigation, she learned that the Department of Child Protective Services had attempted
to stop the Appellant from “babysitting because of the number of children she had.” Mrs. Bailiff
again testified about the extent of Nathan’s injuries. Nathan, now nineteen months old, was still
undergoing medical care. She stated that he continued to have seizures and was possibly blind in
his right eye. Nathan was still unable to walk, talk, and feed himself. According to Mrs. Bailiff, he



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was developmentally “about the age of an 8 month old child.” Finally, Mrs. Bailiff testified as to
Nathan’s unpaid medical bills and other costs directly resulting from these injuries.

       The Appellant, who had recently undergone triple bypass surgery, also testified at the
sentencing hearing. She testified to her numerous medical conditions. She also expressed remorse
and asserted that she did not mean to harm Nathan.

        After consideration of the applicable enhancement and mitigating factors, the trial court
imposed a sentence of three years and two months for the class D felony. The Appellant’s request
for alternative sentencing was denied, and she was ordered to serve her entire sentence in
confinement in the Department of Correction. This appeal followed.

                                                   ANALYSIS

        On appeal, the Appellant argues that the trial court erroneously denied full probation.1 When
the sentencing court properly considers the relevant sentencing considerations, this court conducts
a de novo review with the presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this
case, the presumption of correctness is applied as we find the trial court considered the sentencing
principles and relevant facts.

        Because the Appellant was convicted of a class D felony, she is entitled to the presumption
that she is a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (2003).
However, a defendant has the burden of establishing his suitability for full probation, even if the
defendant is entitled to the statutory presumption of alternative sentencing. Id.; State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996).

        To meet the burden of establishing suitability for total probation, an appellant must
demonstrate that probation will "subserve the ends of justice and the best interest of both the public
and the defendant." State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on
other grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). When deciding suitability for
probation, although not controlling, the sentencing court should use the following criteria: (1) the
nature and circumstances of the criminal conduct involved, Tennessee Code Annotated § 40-35-
210(b)(4) (2003); (2) the potential or lack of potential for rehabilitation, including the risk that
during the period of probation a defendant will commit another crime, Tennessee Code Annotated
§ 40-35-103(5) (2003); (3) whether a sentence of full probation would unduly depreciate the
seriousness of the offense, Tennessee Code Annotated § 40-35-103(1)(B); and (4) whether a
sentence other than full probation would provide an effective deterrent to others likely to commit
similar crimes, Tennessee Code Annotated § 40-35-103(1)(B). Bingham, 910 S.W.2d at 456. Denial
of probation may be based solely upon the circumstances of the offense when they are of such a


         1
         W e note that the Appellant does not request review of the denial of any other form of alternative sentencing.
She argues o nly that she is entitled to full prob ation.

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nature as to outweigh all other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

        Upon de novo review, we find the facts and circumstances of this case to be such that
probation is not appropriate. While given little weight by the trial court, the Appellant does have a
prior theft conviction. The injuries arose while the Appellant was employed as a caretaker for the
infant, thus, violating a trust relationship. Of significant importance, the Appellant’s conduct
resulted in serious and permanent impairment. As described at trial by Dr. William Cooper, a
pediatrician at Vanderbilt, “Shaken Baby Syndrome” is a form of child abuse that occurs when
someone

       will shake the baby very violently – not the type of – like you would shake a baby on
       your knee, this is violent back and forth. . . . Since the injuries include – because
       when the baby’s head shakes back and forth so violently, the skull is hard, but the
       brain is soft, especially in babies because their blood vessels aren’t fully developed,
       and their brain tissue isn’t fully formed yet. As the brain moves back and forth at a
       very rapid speed, and blood vessels are torn both within the brain and also in the back
       of the eyes.

Nathan suffered permanent brain damage and, at the time of the sentencing hearing over a year after
being shaken by the Appellant, was still suffering from seizures. Nathan was developmentally
delayed and possibly blind in his right eye. Despite the Appellant’s genuine remorse, the trial court,
exercising its discretion, found that the Appellant was not suitable for probation. The victim was
a defenseless five-month-old baby. We agree and find that the circumstances of the offense are of
such a nature as to outweigh all factors favoring probation. See State v. Grady Stanley Ingram, No.
03C01-9612-CR-00464 (Tenn. Crim. App. at Knoxville, Jan. 8, 1998).

                                          CONCLUSION

       For the above stated reasons, we conclude that the Appellant has failed to establish that her
sentence of total confinement is improper. Accordingly, the sentencing decision of the Bedford
County Circuit Court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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