                                                                                         03/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 14, 2016

             STATE OF TENNESSEE v. IOKA KIMBUKE KYLES

                Appeal from the Criminal Court for Davidson County
                  No. 2013-D-3323 J. Randall Wyatt, Jr., Judge
                     ___________________________________

                           No. M2016-00796-CCA-R3-CD
                       ___________________________________

The Defendant, Ioka Kimbuke Kyles, entered guilty pleas in the Davidson County
Criminal Court to two counts of facilitation of aggravated child abuse and one count of
facilitation of aggravated child neglect. The trial court imposed concurrent eight-year
sentences for each count, to be served in confinement. On appeal, the Defendant argues
that the trial court erred in denying alternative sentencing. Upon review, we affirm the
judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR. and J. ROSS DYER, JJ., joined.

Nicholas McGregor, Nashville, Tennessee, for the Defendant-Appellant, Ioka Kumbuke
Kyles.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Glenn R. Funk, District Attorney General; and Jennifer Smith, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                        OPINION

        On December 2, 2013, the Defendant and her co-defendant, Thomas Antonio
Ricketts, were indicted for six counts of aggravated child abuse and one count of
aggravated child neglect. The Defendant entered guilty pleas to the lesser charges of
facilitation of aggravated child abuse in counts one and five and facilitation of aggravated
child neglect in count seven, with counts two, three, four, and six to be dismissed
pursuant to the plea agreement. The Defendant also agreed to be sentenced as a Range I,
Standard Offender, with a range of eight to twelve years for each conviction and with all
counts to run concurrently, leaving length and manner of service of her sentence to be
determined by the trial court. At the guilty plea hearing, the State summarized the facts
surrounding the offenses as follows:

      Your honor, the proof would show in this case that on July 18, 2013, the
      victim, who was 7-years-old at the time, was admitted to Vanderbilt
      Children’s Hospital with pain to his right arm. The doctors determined that
      he had a spiral fracture to that arm. It was also discovered that he had
      numerous bruises, abrasions, marks, scars, all over his entire body
      including pattern marks on his back.

      The victim’s weight was also severely low and he was in less than the third
      percentile of his age. Both defendants were interviewed. Both defendants
      admitted to the time frame when the victim was in their exclusive care and
      it was determined that the acute injuries that the victim had would have had
      to have occurred while he was in the defendants’ care.

      However, some of the older healing injuries could have been the result of
      something that might have happened by the biological mother. Both
      defendants stated that the victim’s arm was broken as the result of another
      sibling stepping on his arm. However, the Vanderbilt Care Team stated
      that this was not consistent with this type of fracture and all of the markings
      on the victim’s body were a concern for abuse.

      When confronted with the marks on the victim, the defendants first stated
      that the victim scratches himself and throws himself into a dresser when he
      is in the corner during time-out. When confronted with the markings that
      were all over the victim, they then stated that this was the result of a peanut
      butter allergy.

      The victim was interviewed by several people. Initially, he stated that his
      arm was broke because he slept on it wrong; and then he stated that his arm
      was broke because a sibling stepped on it; and then he stated that the marks
      on his body were the result of a peanut butter allergy. However, he later
      stated that it was both of the defendants that twisted his arm that caused his
      broken arm. He told the forensic interviewer that both defendants beat him
      with whips and switches all over his body.

      He told the forensic interviewer that he was made to stand in the corner all
      day without bathroom breaks and that when he peed on himself he would
      get punished. He told the forensic interviewer that he was denied food as
      punishment.
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       The roommate at the time, Jimmy Young, was interviewed by the police
       and he told the police that he heard the victim being spanked, for peeing on
       himself, during one specific time approximately 15 to 20 times with a belt,
       when he entered the room he saw defendant Kyles holding the victim down
       on the bed while defendant Ricketts was beating him with the victim’s face
       in the mattress. Mr. Young told the police that the victim was beat every
       single day. Mr. Young told the police that the victim was made to stand in
       the corner from when he got up in the morning until night time. He told the
       police that the victim was deprived food and water and he was the only
       child that was not allowed outside to play with the other kids.

       The neighbor, Mr. Stephen Willis, was also interviewed. He told the police
       that he saw the victim standing in the corner all day in his underwear. At
       one point, he saw the victim standing in the corner in his own filth and he
       also stated that at one point the roommate, Jimmy Young, came over to his
       house and was in tears because of how the victim had been treated.

       All of this occurred here in Davidson County and based upon these facts
       the State recommends the previously announced disposition.

The trial court accepted the Defendant’s guilty pleas and set the matter for sentencing.

        Sentencing Hearing. At the March 31, 2016 sentencing hearing, the Defendant’s
presentence report was introduced without objection. The Defendant’s criminal history
included two convictions for possession of drugs and one conviction for filing a false
report.

       Detective Kenney, a detective with the Youth Services division, testified that he
began an investigation of the Defendant and her co-defendant, Thomas Antonio Ricketts,
in July 2013 after the victim was admitted to the hospital for arm pain. The victim’s arm
had a lateral condyle fracture, which commonly results from the arm being grabbed and
forcibly pulled toward the center of the body. The examination also revealed that the
victim had fresh and healing marks, scars, and lesions covering his face, neck, shoulders,
back, hips, buttocks, groin area, and legs. Detective Kenney identified multiple
photographs of the victim taken at the hospital on the day he was admitted and these
photographs were introduced as an exhibit. The victim was also diagnosed with a
“failure to thrive” because he was underweight and his weight had decreased since his
last hospital visit one year prior.



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        The victim initially told hospital staff that he had injured his arm by sleeping on it
wrong. The victim was then interviewed at the hospital by Department of Children’s
Services (“DCS”) and he disclosed that the Defendant had injured his arm by grabbing it
and twisting it. Detective Kenney testified that the victim “indicated that if he had to tell
the truth again that he would get beaten.” Detective Kenney interviewed the victim at the
hospital and recalled that he was “very distraught, very withdrawn, almost terrified.”

       Detective Kenney testified that the victim was later interviewed at the Children’s
Advocacy Center where he told the forensic interviewer that Ricketts had caused his arm
injury. The victim also told the forensic interviewer that Ricketts and the Defendant
would force him to stand in a corner facing the wall for extended periods of time as
punishment for wetting himself and that if he left the corner or had an accident he would
be beaten. Detective Kenney took photographs of the corner where the victim was forced
to stand, and the photographs were admitted at the hearing. Detective Kenney testified
that the victim also told the forensic interviewer that he was often beaten by hand or with
a belt and was denied food and water while the other kids in the house played outside.
The victim told the interviewer that he was the only child in the household who received
physical discipline.

       Detective Kenney explained that, at the time of the incident, the victim was living
with his father, Thomas Antonio Ricketts, and the Defendant, Ricketts’ girlfriend. Also
living in the home were Ricketts’ other minor son and a roommate, Jimmy Young.
Detective Kenney testified that the victim was originally in his mother’s custody but was
removed by DCS in 2012 due to truancy issues and “lack of stable housing and
environmental concerns.” The victim was then placed in the custody of his grandmother,
Ricketts’ mother, Thelma Pinkerton. In May 2013, Ricketts and Pinkerton agreed that
the victim and his brother would live with Ricketts during the summer. Pinkerton told
Detective Kenney that, when the victim went to live with Ricketts in May 2013, he had
no visible injuries other than minor scratches and a burn mark that had possibly occurred
while he was in his mother’s care.

       Detective Kenney interviewed the Defendant twice. The Defendant told Detective
Kenney that the victim’s arm injury occurred when his siblings jumped on him. The
Defendant initially denied knowledge of any injuries to the victim’s back but, after seeing
photographs of the marks, claimed that the victim had an allergic reaction. After being
confronted with more photographs of the victim’s injuries, the Defendant then claimed
that she had noticed the marks after the victim spent time with his mother in July 2013.
The Defendant acknowledged that she punished the victim by putting him in the corner
but claimed it was only for a maximum of thirty minutes. Detective Kenney testified that
the Defendant had five children who were not living in the home and that DCS removed
the Defendant’s children from her custody in 2012 due to her drug use.
                                            -4-
       Jimmy Young testified that Ricketts and the Defendant lived with him for about a
year in 2013. Young confirmed that the victim and six or seven other children lived in
the house during the summer of 2013. Young recalled seeing Ricketts beat the victim
with a belt while the Defendant held him down and the other children watched. Young
also confirmed that the victim was sometimes forced to stand in the corner all day.
Young testified that the victim was allowed outside on the porch but was not allowed to
play with the other children.

       Stephen Willis testified that Ricketts and the Defendant lived next door to him.
Willis recalled observing the victim standing in the bedroom with his nose in the corner.
Willis testified that the victim was alone in the house wearing only soiled underwear.
Willis offered the victim food and water, but the victim refused and said “[t]hey will hurt
me.” Willis testified that he observed this on at least four or five separate occasions over
a two-week period.

       The victim testified but could not recall the time around when his arm was broken
or earlier statements that he had made. The State introduced a recording of the forensic
interview, which the trial court later reviewed when taking the Defendant’s sentencing
under advisement.

        Meela Kyles, the Defendant’s mother, testified that her daughter has five sons and
that two were in Kyles’ custody while the others lived with their father. Kyles testified
that she never saw any injuries on the Defendant’s children. On cross-examination,
Kyles acknowledged that the Defendant did not have custody of her children before her
arrest either. She also acknowledged that there were allegations that the Defendant had
used drugs. Kyles was unaware of the Defendant’s prior convictions and of the specific
allegations against the Defendant in this case.

       The Defendant’s thirteen-year-old son, K.R., testified that he wanted his mother to
come home and that she was a good mother who never hurt or injured him or his four
brothers. K.R. testified that he had played with the victim and his brother before and had
never seen any violence against them. K.R. read letters that he and his brothers wrote to
the court asking for their mother to come home.

       The Defendant made an allocution and requested release so that she could finish
school, work, and help raise her sons. The Defendant also described multiple programs
she finished and certificates she earned while in jail. After hearing the proof and
arguments from counsel, the trial court took the matter under advisement to determine the
appropriate length and manner of service for the Defendant’s three convictions.



                                           -5-
      On April 14, 2016, the trial court entered an order sentencing the Defendant to
concurrent eight-year sentences in confinement. It is from this order that the Defendant
now timely appeals.

                                      ANALYSIS

       On appeal, the Defendant only contests the manner of service of her sentence and
argues that the trial court erred by denying her request for an alternative sentence. The
State responds that the trial court considered the relevant factors and imposed a sentence
consistent with the purposes and principles of the Sentencing Act. We agree.

       “[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 questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Because the record shows that the trial court carefully considered the evidence, the
enhancement and mitigating factors, and the purposes and principles of sentencing prior
to imposing a sentence of eight years, the Defendant has failed “to either establish an
abuse of discretion or otherwise overcome the presumption of reasonableness afforded
sentences which reflect a proper application of the purposes and principles of our
statutory scheme.” Id. at 280.

        Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). In determining
whether to deny alternative sentencing and impose a sentence of total confinement, the
trial court should consider whether:

      (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)(A)-(C); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).



                                          -6-
       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See T.C.A. § 40-35-303(a). An especially mitigated or
standard offender convicted of a Class C, D, or E felony should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary. Id. § 40-35-102(6)(A). However, a trial court “shall consider, but is not bound
by, the advisory sentencing guideline” in section 40-35-102(6)(A). Id. § 40-35-
102(6)(D). Despite a defendant’s eligibility, he or she is not automatically entitled to
probation as a matter of law. Id. § 40-35-303(b), Sentencing Comm’n Cmts. Moreover,
the defendant bears the burden of establishing her suitability for probation. Id. § 40-35-
303(b). “[A] trial court’s decision to grant or deny probation will not be invalidated
unless the trial court wholly departed from the relevant statutory considerations in
reaching its determination.” State v. Kyto Sihapanya, No. W2012-00716-SC-R11-CD,
2014 WL 2466054, at *3 (Tenn. 2014).

        As an initial matter, because the Defendant was convicted of three Class B
felonies, she is not considered a favorable candidate for alternative sentencing. See
T.C.A. § 40-35-102(6)(A). Additionally, the Defendant’s contention that the trial court
did not consider the three factors in Tennessee Code Annotated section 40-35-103(1)(A)-
(C) is without merit. The trial court found that the Defendant’s criminal history of three
prior misdemeanor convictions, although not extensive, was relevant. The trial court also
found that the offense was particularly serious because, “[n]ot only was the child
repeatedly physically abused and even had his arm twisted so hard that it fractured, but
both the Defendant and the co-defendant, Thomas Ricketts, forced the victim to stand
with his face in the corner of their bedroom for entire days on multiple occasions.” The
court also found that the Defendant treated the victim with exceptional cruelty and that
the victim’s injuries were particularly great and likely to affect the victim “long into
adulthood.” Additionally, the trial court expressed interest “in the general deterrence
effect that this sentence should have.”

       Although the trial court did not include an analysis of whether less restrictive
means have been applied in the past, defense counsel stated at the sentencing hearing that
the Defendant had never been on probation before and provided no further information
regarding the manner of service of her previous convictions.1 The record shows that the
court properly relied on the Defendant’s criminal history, the seriousness of the offense,
and general deterrence in denying alternative sentencing. As such, we conclude that the



       1
          The Defendant attempts to rely on information regarding her prior misdemeanor sentences in
her brief that was not included in the record on appeal. However, this court cannot consider facts not
established in the trial court or set forth in the record. See Tenn. R. App. P. 13(c).
                                                -7-
Defendant has failed to prove that the trial court abused its discretion in denying an
alternative sentence.

                                   CONCLUSION

      Upon review of the record, we affirm the trial court’s judgment.


                                            ____________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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