                                                                                          12/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 24, 2019 Session

              STATE OF TENNESSEE v. JAMES R. BAYSINGER

                Appeal from the Criminal Court for Anderson County
                     No. B7C00320 Donald R. Elledge, Judge


                            No. E2018-02295-CCA-R3-CD


The Defendant, James R. Baysinger, pleaded guilty to reckless homicide, a Class D
felony. See T.C.A. § 39-13-215 (2018). Pursuant to the plea agreement, the trial court
was to determine the length and the manner of service. The trial court sentenced the
Defendant to two years and ordered him to serve five months, followed by four years’
probation. On appeal, the Defendant contends that the court erred by denying his
requests for judicial diversion and full probation. We reverse the judgment of the trial
court and remand the case to the trial court for a new sentencing hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, James R. Baysinger.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       This case arises from the 2015 accidental drowning death of a five-year-old boy
who had been in the Defendant’s care at the time of the incident. The Defendant was
indicted for reckless homicide and aggravated child abuse or neglect. Pursuant to the
plea agreement, the Defendant pleaded guilty to reckless homicide, the State dismissed
the remaining charge, and the trial court would determine the length and the manner of
service of the sentence. The guilty plea transcript is not included in the appellate record.
       At the sentencing hearing, the presentence report was received as an exhibit. The
report reflected that the sixty-four-year-old Defendant did not have any previous
convictions. The report showed that the Defendant obtained a two-year degree in
electronic engineering. The Defendant denied having received mental-health treatment,
alcohol or drug treatment, and family therapy. He reported having high blood pressure
and mild arthritis. The Defendant had been raised by his mother and his grandparents,
after his father left when he was age five. The Defendant had two adult sons. The
Defendant’s employment history showed that he received an honorable discharge from
the United States Air Force and that he had continuous employment from 1972 to the
time of the presentence investigation. He had worked for Stevens Beechcraft, Hammond
House of Music, and Tennessee Valley Authority. The report reflected that the
Defendant’s risk of recidivism was “minimal.”

        The Defendant told the presentence investigator that on June 24, 2015, he agreed
to care for the victim and his siblings at the children’s home at the request of their
mother. The Defendant stated that, at some point, he could no longer see the victim, that
the other children identified places the victim liked to hide, and that he looked for the
victim in those places. The Defendant said that after he could not find the victim, he sent
a text message to the victim’s mother, who responded that the victim “had done this
before.” The Defendant said that the victim’s mother called him on the telephone, told
him she was returning home, and asked him not to do anything until she arrived. The
Defendant said that when the victim’s mother arrived, she told him and the other children
to “fan out and yell” the victim’s name, that the victim’s mother threatened to call the
police if the victim did not come out from hiding, and that she called the police at some
point. The Defendant stated that several hours after the police arrived, the victim was
found in the creek. The Defendant said, “I was utterly devastated because I cared a lot
for this little boy, and he loved me very much. I was in a state of shock for weeks, crying
[every day] without warning. I am so very sorry that this ever happened[.]”

       The victim’s mother told the presentence investigator that she and the Defendant
were friends and that she asked the Defendant to care for four of her five children,
including the victim who had “special needs.” The victim’s mother said that she told the
Defendant to keep the children inside until she returned home. She said she received a
text message from the Defendant stating that he could not find the victim. She said that
although the victim had a “habit” of hiding, her other children reported that the
Defendant had been working on his computer. The victim’s mother reported that since
the victim’s death she attended counseling once per week, had post-traumatic stress
disorder (PTSD), and suffered from depression. She said that she previously suffered
from anxiety and suicidal thoughts. The victim’s mother stated that “some” of her other
children attended counseling for depression and PTSD because of the victim’s death.
The victim’s mother stated that the Defendant did not “seem to show the remorse . . . [of]
an average person,” although the Defendant had asked her to forgive him and told her he
wanted to help her cope with the loss of the victim.

                                            -2-
       Anderson County Sheriff’s Investigator Sean Flynn testified that the police had
been looking for the victim for several hours before Investigator Flynn arrived at the
scene around 7:00 p.m. He recalled deputies initially responded to the scene around 1:00
p.m. Investigator Flynn said that several units were involved, along with agencies from a
neighboring county, in searching for the victim. He noted that several officers who were
involved in the search were familiar with the victim and the victim’s family. Investigator
Flynn said he spoke to the victim’s mother, who said that the victim might have suffered
from “some kind of disability.”

        Investigator Flynn testified that, at the request of the victim’s mother, the
Defendant arrived at the victim’s home the night before the incident. Investigator Flynn
said that the Defendant was asked to care for four children the next day in order for the
victim’s mother to conduct business at the courthouse. Investigator Flynn said that the
Defendant said the victim’s mother left the home around 10:30 a.m. Investigator Flynn
said the Defendant reported that the victim went outside, that the Defendant sat at the
kitchen table, and that the Defendant was “involved” with other children inside the
kitchen. Investigator Flynn said that he sat at the kitchen table on a chair identified by
the Defendant, that Investigator Flynn could see into the backyard from this chair, and
that Investigator Flynn could see a hammock and wading pool, where the Defendant had
seen the victim. Investigator Flynn said that the Defendant reported seeing the victim for
the last time around the hammock at 11:00 or 11:05 a.m.

        Investigator Flynn testified that, when the Defendant lost sight of the victim, the
Defendant said he looked for the victim in an outbuilding. Investigator Flynn said that
the Defendant sent the victim’s mother a text message at 11:35 a.m. relative to the places
the victim liked to hide. Investigator Flynn said that the victim liked to hide and that the
victim’s mother identified the victim’s favorite places to hide. Investigator Flynn said
that the Defendant reported having all of the children assist in looking for the victim and
that the Defendant sent another text message to the victim’s mother at 11:49 a.m. stating
that they had not found the victim. Investigator Flynn said that the victim’s mother sent a
text message to the Defendant stating that she was on her way home and that she arrived
home at 12:00 p.m. Investigator Flynn said the Defendant stated that he and the victim’s
mother looked for the victim before calling the sheriff’s office.

       Investigator Flynn testified that the victim was found about 250 yards from the
home submerged beneath five feet of creek water. Investigator Flynn said that the victim
had old abrasions on his elbow, ankle, and jaw and that he saw nothing to suggest “foul
play.” Investigator Flynn said that the foam around the victim’s nostrils and mouth was
indicative of drowning. Investigator Flynn described the creek as having an area in
which the water accumulated to form a pond-like area and said that children used a rope
swing to play in the water. He said that a partially submerged tree went from the
shoreline of the pond to the rope swing. He recalled that the victim wore swimming
trunks, which were on backward.

                                            -3-
       On cross-examination, Investigator Flynn testified that although the Defendant had
been around the children previously, the Defendant had never babysat them. Investigator
Flynn agreed that the Defendant was not a paid caregiver and that the Defendant cared
for the children on the day of the incident to help the victim’s mother. Investigator Flynn
agreed that the victim’s mother needed the Defendant’s assistance because she was
having problems with a previous caregiver, who had been a tenant.

       Investigator Flynn testified that he was unaware of any previous Department of
Children’s Services (DCS) reports stating that the victim had been missing previously.
Investigator Flynn acknowledged, though, that the sheriff’s department had been
involved in searching for the victim about one month before the present incident.
Investigator Flynn agreed the victim was found the same day the victim disappeared in
the previous incident, but he did not know the circumstances of the recovery.
Investigator Flynn stated that the Defendant was cooperative and “tried his best to help
out with the investigation.” He said the ages of the other children at the home were four,
seven, and seventeen.

       Upon questioning by the trial court, Investigator Flynn testified that the Defendant
began looking for the victim at 11:05 a.m. and that the Defendant sent a text message to
the victim’s mother at 11:35 a.m. On recross-examination, Investigator Flynn stated that
he did not know how the Defendant knew the victim had been missing previously and
agreed that the victim’s mother could have provided the information.

        The victim’s mother testified that the home was located in a small rural
community with no nearby neighbors. She said that she met the Defendant through the
Defendant’s former girlfriend and that she and the Defendant were friends. She stated
that she asked the Defendant to come to her home the night before the incident because
she had been receiving threats from a former tenant and because the Defendant made her
feel safe. She said that she left home the next morning to go to the courthouse to obtain a
restraining order against the former tenant. She said that she had planned to take all of
her children with her to the courthouse but that the Defendant suggested he care for the
children. She agreed but said her fifteen-year-old daughter went to the courthouse. She
recalled that the Defendant had spent time with the children previously, which included
camping with the children about one week before the incident. She said the Defendant
and the children knew each other well.

        The victim’s mother testified that she “felt” the victim had “mild Asperger’s, or
something like that” and that the victim’s doctor was “on the cusp” of referring the victim
to a pediatric neurologist. She said the Defendant knew “what kind of child” the victim
had been. She said the victim was loving, curious, and loved the outdoors. When asked
if the victim “liked to wander off,” she said that “[e]very once in a while he would hide in
a bush and it wouldn’t be very long, we would always call out for [the victim] even if it
was five minutes, we always knew to call out for [him] and look for [him] all the time.”

                                            -4-
        The victim’s mother testified that she had been away from home approximately
forty-five minutes when she received the Defendant’s text message stating he could not
find the victim. She said that, after she received the message, she immediately returned
home. She said that she looked for the victim briefly and called 9-1-1 when she did not
find him. She said that she would “never get over” the victim’s death and that she and
one of her daughters suffered from PTSD as a result of the victim’s death. She agreed
that the Defendant did not intend to kill the victim but said that she “ask[ed]” the
Defendant to keep the children inside the home “because of what was going on that
morning.” She said that the victim could dress himself but that she did not recall what
the victim wore when she left home on the day of the incident. She said that the victim
was buried in Monterey, Tennessee, where the victim’s father’s family lived.

        On cross-examination, the victim’s mother testified that she learned the former
tenant had been “addicted to substances” and that, as a result, she made the tenant leave
the home. She recalled the tenant was angry with her for making him leave and said that
he harassed her. She reviewed the text messages exchanged between her and the
Defendant on the day of the incident and agreed the messages were accurate. She said
that the victim liked to hide in the bushes because he liked to look at birds. She agreed
that the Defendant asked in the messages if the victim would go to the creek. She said
that although the victim

      had a tendency to veer around the house, he never usually went too
      extremely far. I really absolutely thought that he was in the woods lost,
      hiding, cold, hungry. And it really never dawned on me that he went down
      to the creek up until [the police] told me. I just never thought that that
      would happen.

She agreed she called the police about one and one-half months before this incident
because she could not find the victim. She said that, when she could not find the victim,
she drove to the children’s school because she thought the victim could have ridden the
school bus with her other children. She said the police ultimately found the victim in the
bushes in the backyard. She agreed DCS became involved but denied anyone discussed
ways to prevent future incidents. When asked if she told the Defendant that the victim
had been missing previously, that DCS became involved, and that the police ultimately
found the victim hiding in the bushes, she stated that the Defendant “knew that.” She
said that she and the Defendant had been friends “throughout the whole thing” and that
she “didn’t keep anything from him.” She did not provide an answer when she was asked
to clarify if she told the Defendant about the previous incident involving the police and
DCS before leaving home on the day of the incident.

        The text messages exchanged between the Defendant and the victim’s mother
reflect that, at 11:35 a.m., the Defendant sent a message stating that the victim “must be
hiding” and asked if the victim’s mother knew “where he might be.” The message stated

                                           -5-
that “[w]e looked in all the rooms and shed.” The victim’s mother responded, “Oh gosh..
he’s hiding again.. bushes sometimes.. so sorry almost done[.]” Although the time stamp
is illegible, the Defendant next message stated that he had looked “everywhere,”
including the “big barn” and that one of the children had said that the victim sometimes
fell asleep when hiding. The victim’s mother responded that she was coming home and
that “he’s done this before so sorry[.]” At 12:06 p.m., the Defendant stated that the
victim had not been upset or misbehaving, that he had yelled for the victim, and that he
had looked behind all of the bushes, in the shed again, in all of the bedrooms, and in the
storage room. The Defendant asked if the victim would go to the creek. The victim’s
mother did not answer the question but, at 12:14 p.m., she asked if the Defendant had
looked inside his van, and the Defendant responded affirmatively six minutes later.

      The Defendant read the following statement to the trial court:

             Thank you, Your Honor. Thank you for this opportunity to address
      the Court. I think of [the victim] often and I feel a great deal of sorrow.
      This has definitely affected me deeply because he was such a sweet boy and
      I cared a lot for him. The first several weeks after his accident[,] I was in
      shock and too emotionally distraught to work. It took me a long time to
      come to grips with what had happened and my part in it. I am terribly sorry
      this happened on my watch. I would never intend for anything to happen to
      anyone like this. I have been filled with sorrow and grief for the past three-
      and-a-half years. And I feel like this will continue to affect my life in all
      my future decisions. As much as I wish I could take back that awful day, I
      have learned to accept my part in this dreadful tragedy knowing there is
      nothing I can do to erase it. I, therefore, humbly plead with the Court for
      the chance to somehow make amends if that is possible.

       The trial court considered the presentence report, the testimony at the sentencing
hearing, and the arguments of counsel. The court found that the Defendant was in
“somewhat of a state of shock” at the time of the incident. The court found that it was
undisputed that the victim “had a habit of hiding.” The court found, based upon the
presentence report, that the children reported to the victim’s mother that the Defendant
had been working on the computer and that, as a result, the victim was able to leave the
home. The court found that the victim “was a special needs child” based upon the
victim’s mother’s statement in the presentence report and in her sentencing hearing
testimony. The court noted her presentence statement reflected that the Defendant
showed little to no remorse and was concerned about the impact of the victim’s death on
her and the Defendant’s relationship. The court was “disturbed” by the statement.

       The trial court determined that the Defendant had no previous criminal history and
was not a member of a criminal gang organization. The court found that the Defendant
obtained an associate’s degree in electronic engineering, had good mental health, and did

                                           -6-
not have a history of substance abuse. The court found that the Defendant did not have a
physical disability, although he suffered from high blood pressure and mild arthritis and
took prescribed medications. The court found that he was honorably discharged from the
United States Air Force and had a continuous work history.

        The trial court found that although the victim’s mother told the Defendant to keep
all of the children inside the home because “of what was going on” with the former
tenant, the Defendant last saw the victim outside at 11:05 a.m. The court found that the
Defendant had been working on his computer during this time, that the victim was found
wearing his swimming trunks backward, and that the trunks were not put on by an adult.
The court “assumed” that the victim put on the trunks when the Defendant was working
on his computer. The court found, based upon his spending time with the children
previously and the victim’s mother’s testimony, that the Defendant knew the police had
been called to the home previously to search for the victim and knew the victim liked to
hide outside in the bushes. The court determined that the Defendant knew about the DCS
investigation because the victim’s mother stated the Defendant knew about it based upon
their friendship. The court found that although the Defendant knew these things, he sat
inside the home working on his computer. The court determined that this “tragic, tragic,
tragic event . . . could have been stopped but for the serious recklessness” of the
Defendant.

        The trial court applied enhancement factors (4), (10), (14). See T.C.A. § 40-35-
114 (2018). The court found that the victim was age five and “had disabilities” and that,
as a result, was particularly vulnerable. See id. § 40-35-114(4) (“A victim of the offense
was particularly vulnerable because of age or physical or mental disability[.]”). The
court applied factor (10) but gave it “very little weight” because the mens rea of the
conviction offense was recklessness and because the Defendant acted with a “high level”
of carelessness. See id. § 40-35-114(10) (“The defendant had no hesitation about
committing a crime when the risk to human life was high[.]”). The court determined that
the Defendant abused a position of private trust because he was trusted to supervise the
children when the victim’s mother was away from the home. See id. § 40-35-114(14)
(“The defendant abused a position of . . . private trust . . . in a manner that significantly
facilitated the commission or the fulfillment of the offense[.]”).

       The trial court stated that it could not consider whether to grant the Defendant’s
request for judicial diversion because a certificate of eligibility from the Tennessee
Bureau of Investigation (TBI) had not been filed with the court. The court, nonetheless,
found that the Defendant was eligible to receive diversion and denied the request after
considering the circumstances of the offense, which included the Defendant’s “gross
carelessness . . . to the extent that it resulted in a child’s death.” The court found that the
public was entitled to learn of the Defendant’s conviction “because, if not, . . . [the
Defendant] has the opportunity, if it is cleared from his record to commit this crime
again. If he was careless this time, who is to say he won’t do it again.” The court

                                             -7-
determined that “it’s vitally important that the public . . . that any child be publicly
protected . . . . And there is no way if he doesn’t have a record that this won’t happen
again.” The court found that granting judicial diversion would not serve the public
interest. The court determined that public interest, which included a discussion about the
Defendant’s amenability to correction, deterrence, and circumstances of the offense
weighed against judicial diversion.

       The trial court made no additional findings and conclusions, specific to alternative
sentencing or otherwise, before announcing the sentence. The court determined that the
Defendant was a Range I, standard offender and imposed a two-year sentence. The court
ordered the Defendant to serve five months in confinement at 75% service and four years
on probation. The court, likewise, ordered the Defendant to visit the victim’s gravesite
four times per year in lieu of community service. This appeal followed.

       As a preliminary matter, we note that although the guilty plea transcript is not
included in the appellate record, the record is sufficient for a meaningful review of the
issues presented. See Caudle, 388 S.W.3d at 279 (holding that when a guilty plea
transcript is not present in the appellate record, this court should “determine on a case-by-
case basis whether the record is sufficient for a meaningful review under the standard
adopted in [State v. Bise, 380 S.W.3d 682 (Tenn. 2012)]”). The testimony at the
sentencing hearing provided sufficient factual evidence surrounding the offense.

                           I.      Denial of Judicial Diversion

       The Defendant contends that the trial court erred in denying judicial diversion,
arguing that the court failed to consider all of the relevant factors in making its
determination. The State responds that the court did not abuse its discretion by denying
diversion.

       As a preliminary matter, the appellate record does not contain a certificate from
the TBI stating that the Defendant is eligible and qualified to receive judicial diversion.
Tennessee Code Annotated second 40-35-313(a)(3)(A) states, “No order deferring further
proceedings and placing the defendant on probation . . . may be entered by the court . . . ,
unless there is attached to it a certificate from the Tennessee bureau of investigation
stating that the defendant does not have a prior felony or Class A misdemeanor
conviction.” The trial court noted at the sentencing hearing that a certificate of eligibility
had not been presented to the court but, in any event, rendered findings and conclusions
relative to judicial diversion. Likewise, the absence of a certificate was discussed during
oral argument before this court. Defense counsel noted that the certificate was not in the
appellate record but that counsel had the certificate. The panel stated that the panel
would address any motion to supplement the record. On October 2, 2019, the Defendant
filed a motion to supplement the record with the “TBI diversion eligibility certificate”
because it “was not included” in the appellate record transmitted by the trial court clerk’s

                                             -8-
office. On October 3, this court ordered the trial court clerk to supplement the appellate
record with the certificate. On October 10, the trial court clerk responded that the
certificate “has not been filed” with the clerk’s office.

       Although the trial court determined that the Defendant qualified for judicial
diversion, the transcript reflects that the court did not “have a TBI certificate here today.
I can’t do any type of judicial diversion unless I have a TBI certificate.” The statute
requires a TBI certification that a defendant is qualified to receive judicial diversion, and
“[w]ithout this certification . . . , the trial court could not grant judicial diversion.” State
v. Jonathan Ray Sender, No. M2009-01713-CCA-R3-CD, 2010 WL 4398720, at *4
(Tenn. Crim. App. Nov. 8, 2010); see State v. Steven Matthew Messer, No. E2013-00647-
CCA-R3-CD, 2014 WL 259706, at *3 (Tenn. Crim. App. Jan. 22, 2014). Furthermore,
this court has concluded that a defendant seeking judicial diversion has “the burden of
showing the trial court that the defendant is in fact statutorily qualified for judicial
diversion” and that “[u]nless a defendant is qualified, further determinations by the trial
court on the issue of granting or denying judicial diversion is pointless.” Id. Because the
record does not contain a TBI certification showing that the Defendant is qualified to
receive judicial diversion, appellate consideration of this issue is precluded. The
Defendant is not entitled to relief.

                              II.    Denial of Full Probation

       The Defendant contends that the trial court erred by ordering split confinement,
arguing that the court should have ordered full probation because the Defendant did not
know the victim had been missing previously and because the nature of the offense does
not warrant a denial of full probation. He does not challenge the trial court’s application
of enhancement factors and the length of his sentence. The State responds that the court
did not abuse its discretion by ordering split confinement.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

      A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court


                                              -9-
is permitted to sentence a defendant who otherwise qualifies for probation or alternative
sentencing to incarceration when:

       (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654. “The guidelines
applicable in determining whether to impose probation are the same factors applicable in
determining whether to impose judicial diversion.” State v. Trent, 533 S.W.3d 282, 291
(Tenn. 2017). The relevant factors for a trial court to consider include a defendant’s
amenability to correction, social history, criminal history, and physical and mental health,
and the need for special and general deterrence. Id.; see State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998); see also T.C.A. § 40-35-103.

       The record reflects that the Defendant was eligible for probation because the
sentence imposed was less than ten years. See id. § 40-35-303(a). Likewise, he was a
favorable candidate for probation based upon his standard offender classification,
although a trial court is not bound by the advisory sentencing guideline. See id. § 40-35-
103(1)(A)-(C); 40-35-102(6)(A)-(D). The trial court’s findings and conclusions were not
specific to probation, but the record reflects that the court denied full probation based
upon the Defendant’s amenability to correction, the need for deterrence, and the nature of
the offense. See id. § 40-35-103(1)(B); see also State v. Sihapanya, 516 S.W.3d 473, 476
(Tenn. 2014) (concluding that when the denial of alternative sentencing is based upon
both considerations in 40-35-103(1)(B), the “heightened standard of review” does not
apply); Trotter, 201 S.W.3d at 654 (concluding that when “the seriousness of the offense
forms the [sole] basis for the denial of alternative sentencing, . . . 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”) (internal
quotation marks and citation omitted); State v. Hooper, 29 S.W.3d 1, 13 (Tenn. 2000)
(concluding that deterrence can be the sole basis for the denial of alternative sentencing
“when the record contains evidence which would enable a reasonable person to conclude
that (1) deterrence is needed in the community, jurisdiction, or state; and (2) the
defendant’s incarceration may rationally serve as a deterrent to others similarly situated
and likely to commit similar crimes”).


                                             -10-
       The undisputed facts reflect that the Defendant was charged with caring for four
children, between the ages of four and seventeen, while the victim’s mother drove to the
courthouse to address an unrelated matter. The victim’s mother testified that she told the
Defendant to keep the children inside the home while she was gone because of threats she
received from a former tenant, but, at some point, the Defendant saw the victim playing
in the backyard alone. Although the Defendant could see the victim from the kitchen
table at which the Defendant sat, the Defendant lost sight of the victim at 11:05 a.m. The
other children reported that the Defendant had been working on his computer. After the
Defendant and the other children unsuccessfully searched for the victim inside and
outside of the home, the Defendant contacted the victim’s mother at 11:35 a.m. The
exchange of text messages that followed reflect that the Defendant believed the victim
was hiding and asked for direction relative to where to search. The victim’s mother
stated that the victim was “hiding again,” suggested the Defendant look in the bushes,
and said the victim had “done this” previously. The Defendant asked if the victim would
go down to the creek, but the victim’s mother did not answer and directed the Defendant
to search his van. After the victim’s mother arrived home, she called the police, who
found the victim submerged in the creek. The victim wore his swimming trunks
backward. Although the victim’s mother was dissatisfied with the level of the
Defendant’s remorse, the Defendant told the presentence investigator that he was
“devastated,” that he had been in a state of shock for weeks after the victim’s death, and
that he was sorry that the victim had died.

        The record reflects that the Defendant had no previous criminal convictions, and
the presentence report reflects that the Defendant’s risk for recidivism was “minimal.”
Likewise, the Defendant had obtained an associate’s degree, had continuous employment
since his honorable discharge from the United States Air Force, had good social history,
and had good physical and mental health. Although the Defendant disputes that he knew
about the previous incident occurring about one month before the victim’s death in which
the victim hid in the bushes outside the home and in which the police and DCS became
involved, the victim’s mother testified that the Defendant knew about this. However, the
text messages from the day of the incident reflect that the victim’s mother apologized to
the Defendant and that she stated the victim had “done this” previously. In any event, the
trial court credited the victim’s mother’s testimony that the Defendant knew about the
previous incident. As a result, the record supports the trial court’s determination that the
victim’s death was “tragic” and was the result of the Defendant’s “serious recklessness”
and “gross carelessness” and that the victim’s death might have been prevented had the
Defendant not been working on a computer.

       However, the trial court’s findings regarding the Defendant’s potential for
rehabilitation and the public interest are problematic. The court stated that “if [the
Defendant] was careless this time, who is to say he won’t do it again,” that “it’s vitally
important . . . that any child be publicly protected,” and that “there is no way if he doesn’t
have a record that this won’t happen again.” The court’s statements reflect a

                                            -11-
determination that the Defendant was not amenable to correction, despite that it found
this incident was a “tragic event,” that the Defendant had no previous criminal
convictions, that his employment and personal history were good, and that the
presentence report reflected that he was unlikely to reoffend. Likewise, the Defendant’s
statement to the court reflected remorse, sorrow, and responsibility for the victim’s death,
although the Defendant did not intend for harm to come to the victim. The court’s
reliance on the public interests to impose a sentence of confinement was related, at least
in part, to the court’s determination that the Defendant would reoffend if the public
remained unaware of the Defendant’s conduct. The evidence at the sentencing hearing
does not support the trial court’s finding regarding the likelihood of recidivism.

        Regarding the trial court’s reliance on deterrence, a sentence involving
confinement may be based upon general deterrence when the evidence shows that
“confinement is particularly suited to provide an effective deterrence to others likely to
commit similar offenses.” T.C.A. § 40-35-103(1)(B); see State v. Nunley, 22 S.W.3d
282, 286 (Tenn. Crim. App. 1999). The evidence “should ‘indicat[e] some special need
or consideration relative to that jurisdiction which would not be addressed by the normal
deterrence inherent in any criminal activity.’” Nunley, 22 S.W.3d at 286 (quoting State v.
Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991)). The record does not contain
any evidence or information related to the special public need for deterrence in Anderson
County regarding “careless” and “reckless” conduct that unintentionally results in the
death of a child. Likewise, the record does not contain evidence showing that the
Defendant had previously engaged in similar conduct warranting confinement as a
specific deterrent against the Defendant’s future conduct. To the contrary, the record
reflects that the Defendant had been around the victim and his siblings previously without
incident and that the Defendant had no previous criminal history. Therefore, the record
does not support the trial court’s findings regarding deterrence.

        The remaining basis for denying full probation was the seriousness of the offense.
The record reflects that the trial court’s focus was that the Defendant’s reckless conduct
resulted in the victim’s death. However, the fact that the victim died cannot alone
support the denial of probation in this case because a death is a general element of
reckless homicide. See State v. Housewright, 982 S.W.2d 354, 357-58 (Tenn. Crim. App.
1997); see also T.C.A. § 39-13-215 (“Reckless homicide is the reckless killing of
another.”). As this court has previously stated, we “recognize[] the grave nature of
crimes that involve the death of another person. However, we also readily acknowledge
that we are governed by laws enacted by the legislature.” Housewright, 982 S.W.2d at
358. The legislature has provided that a defendant sentenced to ten years or less is
eligible for alternative sentencing, even if the defendant is convicted of an offense
involving the death of the victim. See T.C.A. § 40-35-303(a). “[O]ur legislature has
specified that the sentence of probation is to be considered for certain defendants who
commit certain crimes regardless of the basic elements of those crimes.” Trent, 533
S.W.3d at 292. (Emphasis in original). “If trial courts were permitted to deny probation

                                           -12-
solely on the basis of the elements of probation-eligible offenses, then the statute
providing for probation-eligibility for those offenses would be rendered a nullity.” Id.
Although the trial court determined that the victim’s death might have been prevented but
for the Defendant’s working on the computer, it is insufficient to deny full probation
because the Defendant killed someone while engaged in reckless conduct.

       The Defendant has not challenged the trial court’s application of the enhancement
factors, and we acknowledge that the misapplication of a single factor is alone
insufficient to vacate a sentence. See T.C.A § 40-35-114; see also Bise, 380 S.W.3d at
706. However, the record reflects that the court misapplied enhancement factor (10). See
T.C.A. § 40-35-114(10) (“The defendant had no hesitation about committing a crime
when the risk to human life was high[.]”). The prosecutor argued that the Defendant
displayed a “lack of hesitation up to and including his behavior that day . . . [by] not
properly supervising the child.” The application of factor (10) was based upon the risk to
the victim. Our supreme court, though, has stated that “the law has been clear for over
twenty years that this enhancement factor is applicable only when there is proof that the
defendant’s conduct in committing the offense created a high risk to the life of someone
other than the victim.” Trent, 533 S.W.3d at 294 (citing Bingham, 910 S.W.2d 448, 452-
53 (Tenn. Crim. App. 1995)). The record does not contain evidence reflecting that the
Defendant’s recklessness placed anyone other than the victim at risk.

       We likewise note that the record contains insufficient evidence supporting a
determination that the victim was particularly vulnerable because of age or of intellectual
disabilities. See T.C.A. § 40-30-114(4). Our supreme court has concluded that
enhancement factor (4) “relates more to the natural physical and mental limitations of the
victim than merely to the victim’s age.” State v. Adams, 864 S.W.2d 31, 35 (Tenn.
1993). Furthermore, age alone is insufficient to establish a particular vulnerability, and
our courts have said that a particular vulnerability is established when the State
establishes that a victim is “incapable of resisting, summoning help, or testifying against
the perpetrator.” Id.; State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001). The only
testimony regarding the victim’s abilities came from the victim’s mother, who stated that
she “felt” the victim, who was age five, had “mild Asperger’s, or something like that.”
She said that the victim’s doctor was “on the cusp” of referring the victim to a pediatric
neurologist, but no evidence was presented to the trial court showing how the victim’s
undiagnosed condition impacted his ability to resist, to summon help, or to provide
testimony. She described the victim as loving, curious, and someone who loved the
outdoors. When asked if the victim “liked to wander off,” she said that “[e]very once in a
while he would hide in a bush and it wouldn’t be very long, we would always call out for
[the victim] . . . , we always knew to call out for [him] and look for [him] all the time.”
However, this evidence does not show that the victim’s age or mental capabilities
prevented him from calling for help or would have prevented him from testifying about
the Defendant’s conduct if the victim had not drowned accidentally.


                                           -13-
       Furthermore, the record does not reflect that the trial court considered any
appropriate mitigating factors, although the Defendant submitted a sentencing
memorandum discussing mitigating factors and addressed mitigating factors at the
sentencing hearing. T.C.A. § 40-35-113 (2018). Investigator Flynn and the victim’s
mother testified that the Defendant was cooperative and attempted to help with the police
investigation and to find the victim. See id. § 40-35-113(10) (“The defendant assisted the
authorities in locating or recovering any . . . person involved in the crime[.]”).
Furthermore, as we have discussed above, the record supports a determination that the
likelihood of recidivism is minimal, and the court determined that this case involved a
“tragic event.” See id. § 40-35-113(11) (“The defendant, although guilty of the crime,
committed the offense under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated the criminal conduct[.]”).

       As a result of the trial court’s errors, the record does not permit the presumption of
reasonableness to attach to the trial court’s sentencing determinations. In addition to the
determinations unsupported by the record, we are concerned that the trial court denied
full probation based upon the elements of the offense despite the legislature’s providing
that reckless homicide is an offense for which a defendant is probation eligible.
Therefore, we remand this case to the court for a new sentencing hearing. Furthermore,
consideration of judicial diversion may be renewed upon remand if a TBI certification
showing that the Defendant is qualified to receive judicial diversion is filed with the court
before or during the new sentencing hearing.

       In reaching this determination, we have not considered whether the condition of
probation that the Defendant visit the victim’s gravesite four times per year is authorized
by the Sentencing Act. See id. § 40-35-303(d); see also State v. Mathis, 114 S.W.3d 915,
918 (Tenn. 2003) (“Tennessee does not permit courts to impose punishments that are
beyond the bounds of traditional notions of rehabilitation,” and conditions of probation
must serve either of the two main goals of probation, which include rehabilitating the
defendant and providing a deterrent to others.) (internal quotations and citations omitted).
The Defendant consented to the condition and has not challenged its application on
appeal.

       In consideration of the foregoing and the record as a whole, we reverse the
judgment of the trial court. The case is remanded to the trial court for a new sentencing
hearing.



                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE



                                            -14-
