State of Tennessee v. Kawisha Price

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 4, 2004

STATE OF TENNESSEE v. KAWISHA PRICE

Appeal from the Circuit Court for Gibson County

No. H 7161 Clayburn Peeples, Judge

No. W2003-00753-CCA-R3-CD - Filed July 8, 2004

The appellant, Kawisha Price, was indicted for aggravated child abuse. She entered a best-interest

plea to aggravated assault with a sentence of eight years as a Range II multiple offender, with the

trial court to determine the manner of service of the sentence. The trial court subsequently ordered

her to serve the sentence in confinement. She appeals, arguing that the trial court decided the

manner of service of the sentence before any proof was offered on her behalf and erred in ordering

her to serve the sentence in confinement. For the following reasons, we affirm the judgment of the

trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and JAMES

CURWOOD WITT , JR., JJ., joined.

Periann S. Houghton, Assistant Public Defender, Trenton, Tennessee for the appellant, Kawisha

Price.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

Gary Brown, District Attorney General; and Elaine Gwinn Todd, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual Background

In April of 2002, the appellant was indicted for the aggravated child abuse of her infant

daughter. Pursuant to settlement with the State, the appellant originally pled guilty to aggravated

child neglect, with the sentence to be determined by the trial court. She later withdrew that plea and

entered a best-interest plea to aggravated assault with a sentence of eight years as a Range II,

multiple offender with the trial court to determine the manner of service of the sentence. At the

sentencing hearing, the prosecutor stated that if the case had gone to trial, the proof would have

shown that on August 8, 2001, the infant daughter of the appellant suffered second degree burns over

nine percent (9%) of her body when the appellant gave her a bath and that the injuries could not have

been inflicted in the manner described by the appellant. After the trial court accepted the plea, both

the State and the appellant proceeded to introduce testimony from various witnesses prior to the trial

court’s decision on sentencing.

Sergeant Dennis Wright of the Humboldt Police Department was notified on the morning of

August 9, 2001, that a baby was taken to Humboldt General Hospital with severe injuries the night

before and subsequently transferred to LeBonheur Hospital in Memphis. That afternoon, Sergeant

Wright traveled to Memphis where he photographed the infant’s injuries, spoke with the social

worker, and spoke with the appellant.

Sergeant Wright interviewed the appellant both at the hospital and again several days later

at the police station. She gave essentially the same version of events during both interviews. During

the interview at the police department she stated:

Sir I was giving her a bath and I let the water run before I put her in the water and it

was too hot I did not check the water it was just too hot and it burned her face. . . .

[when she put the child under the water] she jumped back and that’s when I felt the

hot water and that’s when I pulled her back out of the water. . . . [The child was in

the water] for about a minute or two it wasn’t even that long, cause soon as I put her

under there she jumped back and I pulled her back and I just seen [sic] her face it was

peeling.

Sergeant Wright observed that the appellant was “very cold, aloof and totally unremorseful” and that

she “showed no concern whatsoever with the injuries the child sustained.”

As a result of the appellant’s statement, Sergeant Wright asked the appellant for permission

to test the water temperature at her apartment. She agreed, but Sergeant Wright was required by the

Housing Authority to obtain a search warrant prior to his entry to the apartment. On the day he

tested the water with a candy thermometer, the water reached a temperature of 125 degrees in less

than one minute. Sergeant Wright inspected the hot water heater, which was kept under lock and

key, to insure that it had not been tampered with prior to his inspection. At the time he inspected the

unit, it had cobwebs on it and appeared to be undisturbed. Sergeant Wright also observed the

appellant had been heating a bottle in the microwave.

Shamaricus Hunt, the victim’s father, was asleep at the time of the offense. The appellant

and her brother had gone out to “play spades” and he was left with the victim. He remembers the

appellant waking him up and they immediately took the child to the hospital. Mr. Hunt stated that

the appellant told him that she was giving the victim a bath when the injuries occurred, that she

appeared to be in shock, and that she was crying, but not hysterical. Mr. Hunt did not believe that

the injuries were intentional.

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Dr. Robert Van Walling, a pediatrician and Director of the Crisis Center at LeBonheur, saw

the victim on August 10, 2001. He described the infant’s injuries as second degree burns over

approximately 7% of her total body surface, with most of the burns being located on her face.

During the hospital stay, the victim had to be fed through a feeding tube because bottle feedings were

too painful. While the victim was at the hospital, Dr. Walling spoke with the appellant on several

occasions. He also took photographs of the injuries. Dr. Walling described the appellant’s actions

as defensive, focusing on her own needs and what was going to happen to her. Based on the injuries

sustained, Dr. Walling felt that the temperature at most was 127 degrees. He described comfortable

bathing temperature as 98-101 degrees and typical hot tub temperature as 106-108 degrees. In his

expert opinion, the child would have had to be under the water from one to two minutes to sustain

the type of burns that she received if there was no cold water mixed in with the hot water. He felt

that if the appellant had been holding the victim under the water, the appellant would have felt pain

in her hand. Dr. Walling concluded that the “burns and pattern of the burns and how they occurred

is not consistent with the story that - - which she tells us.”

The Department of Children’s Services (“DCS”) took steps to determine whether to return

the infant to the appellant. Leslie Nelms, a team leader with DCS, attended three supervised home

visits between the appellant and the child and determined that the appellant’s behavior was

appropriate. Both the appellant and the infant’s father, Shamaricus Hunt, attended an initial

interview and evaluation at LeBonheur Center for Parents and Children concerning a permanency

plan, but neither attended a later appointment with a mental health professional or subsequent

parenting classes. That appointment was rescheduled and, again, the appellant failed to attend. Ms.

Nelms stressed the importance of these meetings to the appellant, even calling her several times to

remind her of appointment dates. The appellant never contacted Ms. Nelms about the missed

appointments. Ms. Nelms also never heard the appellant express remorse over what happened to the

infant. DCS gave legal custody of the victim to the paternal grandmother after a finding of severe

child abuse. DCS has since discontinued visitation between the child and the appellant.

Beverly Hunt, the victim’s paternal grandmother, received legal custody in October of 2001.

At the time of the sentencing hearing, the victim was two years old and still had scarring on both the

right and left side of her face, as well as along her jaw line and the side of her nose. The scarring

was described as permanent unless the victim underwent further surgery. Prior to the hearing, Ms.

Hunt allowed the appellant to have unsupervised visitation with the victim. After seeing the pictures

and hearing the testimony, however, she had reservations about allowing the appellant to have visits

with the child.

William Seward, the appellant’s uncle, went to the hospital the night of the offense. He

observed the appellant as disturbed and upset, but admitted that she was not crying. He also stated

that the appellant did not have a drug or alcohol problem.

Laquezi Champion, the appellant’s aunt, stated that she was around the appellant on a daily

basis and observed the appellant’s interaction with the appellant’s other child as appropriate. The

appellant called Ms. Champion on the night of the offense and asked her to come to the hospital.

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Ms. Champion described the appellant as hysterical. Ms. Champion did not feel the injuries were

intentional.

The appellant testified at the hearing that she was 22 years old and, in addition to the victim,

has a four-year-old daughter. She claims that she was not upset with the victim at the time of the

offense, but that the victim had been crying, so she attempted to calm her by giving her a bath. The

appellant stated that she turned the water on and began washing the child’s hair before she tested the

temperature of the water. She denied placing the child’s face under the water, claiming instead that

the water from the child’s hair ran onto her face. The appellant testified that when she saw the child

jerk and move her head, she quickly pulled the victim away from the water and saw that her skin was

peeling. The appellant said that the water was not hot enough to burn her hand and that she never

meant to harm the child. She further claimed that the Housing Authority knew that the water was

too hot and had the water turned down before Sergeant Wright checked it.

As to her failure to attend parenting classes, the appellant claimed she did not know anything

about them. Since DCS removed the child from her custody, however, the appellant has been

attending parenting classes every Thursday at the Carl Perkins Center. She is now employed by the

Tennessee State Veteran’s Home.

At the conclusion of the proof from both the State and the appellant, the trial court made the

following findings:

The question that obviously remains is whether or not the evidence shows that

the sentence should be served within the Department of Correction or within - -

some other way. The State did not allege any aggravating factors; however, my

understanding is I’m still required to evaluate the case in accordance with the proof

that has been shown in the sentencing hearing and I’m required to look to several

sources when I do that. First of all, I’m required to look at what the purposes of

punishment in the State of Tennessee are. Generally, they’re said to be - - to fall in

four different categories. First of all, deterrence. Second, isolation or incapacitation.

Third, rehabilitation, and fourth retribution. Now, retribution is considered by just

about everybody to be a non-utilitarian purpose and that will not be considered by the

Court to be a legitimate function of the law. Now, deterrence is generally considered

to be of two types, both a general deterrence and special deterrence. General

deterrence is when we punish one person so that everybody else can see what has

happened and, perhaps, be encouraged to obey the law. Special deterrence is when

we punish one person in hopes that they will not violate the law again. Related to

deterrence is the educative aspect of the law. . . . I do find that the Defendant’s

criminal record or lack of criminal record, in this case, is a mitigating factor, but I

have to balance mitigating factors against whatever aggravating factors exist, and

also what I would refer to as the need of society for moral symmetry between crime

and punishment. Statute reads to avoid depreciating the seriousness of the offense.

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I find that the victim in this case was particularly vulnerable because of her

age. I find that even in these - if this activity was, in fact, reckless rather than

knowing, it was intentionally exceptionally cruel treatment under the circumstances.

Of course, those would have blended into the offense of aggravated child abuse, but

that’s not what she has pled guilty to. So I consider them to be aggravating

circumstances.

I do not find that the Defendant has made any significant efforts at all to

rehabilitate herself in order to protect her children in the future. I think the proof

shows on the contrary that she resisted such efforts. That the State and various

agencies or just one agency has made to provide that. I reluctantly and sorrowfully

find that if I follow what I understand the law of the State of Tennessee to be I must

order her to serve that sentence in its entirety with the Department of Correction.

The appellant subsequently filed a timely notice of appeal. She challenges the trial court’s

decision ordering her to serve her eight-year sentence in confinement and alleges that the trial court

made its determination regarding sentencing prior to the presentation of any proof from the appellant.

Sentencing

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review

on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §

40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action

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). In conducting our review, we must consider the defendant’s potential for

rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing

principles, sentencing alternative arguments, the nature and character of the offense, the enhancing

and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);

Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of

demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

In balancing these concerns, a trial court should start at the presumptive sentence, enhance

the sentence within the range for existing enhancement factors, and then reduce the sentence within

the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight

for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it

comports with the sentencing principles and purposes of our code and as long as its findings are

supported by the record. Id.

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Turning more specifically to the facts of this case, the appellant entered a best interest plea

to aggravated assault and agreed to an eight-year sentence to be served as a Range II multiple

offender. The only issue before the court was the manner of service of the sentence.

The appellant first alleges that the trial court pre-determined her sentence prior to hearing the

defense proof. Citing only to a docket sheet, the appellant claims that the trial court ordered her to

serve her sentence in incarceration prior to the conclusion of the hearing. The State argues that the

record does not support the appellant’s claim.

The hearing took place on March 13 and 14 of 2003. According to the transcript, on March

13, the trial court accepted the guilty plea, heard opening arguments from counsel, and heard all of

the State’s proof. On March 14, the trial court heard proof from the defense and made an oral ruling

in which the court determined that the appellant should serve her sentence in confinement. The

docket sheet contained in the record contains the following entry for March 13, 2003: “Plea of guilty

to agg assault (c felony) sent to serve eights years at 35% as multiple offender.” Written on the next

line appear the words “report 3-21-03 @ 7:00 a.m.” The judgment sheet, entered on March 14, 2003

and filed on March 20, 2003, indicates that on March 14, the “Judge determined that no part of the

sentence is to be suspended. Designated place of confinement Tennessee Department of Corrections,

defendant to report for service March 21, 2003 at 7:00 a.m.” According to the transcript of the

hearing, the trial court’s oral ruling was made at the conclusion of all the proof at the end of the day

on March 14, 2003. Thus, there is an apparent conflict between the court minutes and the transcript.

The minutes reflect that the appellant was ordered to serve the sentence on March 13, prior to the

presentation of her proof, and the transcript reflects that the trial court made the sentencing

determination at the conclusion of all the proof on March 14.

Ordinarily, when conflicts exist between evidence transcripts and court minutes, the

transcripts control. State v. Clark, 67 S.W.3d 73, 79 (Tenn. Crim. App. 2001) (citing State v. Moore,

814 S.W.2d 381, 383 (Tenn. Crim. App. 1991)). We determine that in this case there is no reason

to believe otherwise1. The trial court’s ruling and the entry of the judgment occurred at the

conclusion of all the proof on March 14, 2003. This issue is without merit.

With respect to the appellant’s challenge to the trial court’s determination that she should

serve her sentence in the Department of Correction, we note that the appellant is eligible for

probation. See Tenn.Code Ann. § 40-35-303(a). However, because the appellant was sentenced as

a Range II multiple offender for a Class C felony she is not presumptively entitled to an alternative

sentence. See Tenn. Code Ann. § 40-35-102(6). Furthermore, in determining whether to grant

probation, the trial court must consider the nature and circumstances of the offense; the defendant’s

criminal record, her background and social history; her present condition, including physical and

mental condition; and the deterrent effect on the defendant. See State v. Souder, 105 S.W.3d 602,

1

Although it appears that the words “report 3/21/03 @ 7:00 am” are written in different handwriting, the fact

remains that a conflict exists between the transcript and the court minutes. W e have no choice but to determine the

transcript controls.

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607 (Tenn. Crim. App. 2002); State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999). The

burden was on the appellant to show that she was a suitable candidate for probation. Tenn. Code

Ann. § 40-35-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v.

Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). To meet this burden, a defendant “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) (quoting

State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

There is no mathematical equation to be utilized in determining sentencing alternatives. Not

only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. § 40-

35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized

punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn.

Crim. App. 1994). In summary, sentencing must be determined on a case-by-case basis, tailoring

each sentence to that particular defendant based upon the facts of that case and the circumstances of

that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

The trial court denied the appellant split confinement or probation on the basis that

confinement was necessary to avoid depreciating the seriousness of the offense, and due to the

appellant’s apparent lack of remorse for her actions and failure to rehabilitate herself. These are

appropriate grounds for the denial of an alternative sentence. Tenn. Code Ann. § 40-35-103(1);

Dowdy, 894 S.W.2d at 306; State v. Treca Finchum, No. E2001-01072-CCA-R3-CD, 2002 WL

31190924, at *9 (Tenn. Crim. App. at Knoxville, Oct. 2, 2002), perm. to appeal denied (Tenn. 2003).

The victim’s grandmother and legal custodian testified that the appellant’s actions had

permanently scarred the child’s face. The medical expert testimony presented at the hearing

indicated that the child’s burns could not have occurred in the manner the appellant claimed. In fact,

Dr. Walling felt it would have been necessary for the child to be under water for one to two minutes

in order to sustain the type of burns she received. The appellant failed to attend classes as mandated

by the permanency plan created by DCS. Moreover, the undisputed facts of this case show that in

actuality the appellant’s actions most likely constituted aggravated child abuse. See Tenn. Code

Ann. § 39-15-402. That offense, as a Class A felony, is not subject to probationary sentencing. See

State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983) (holding that a trial judge in considering

probation may properly look behind a plea bargain to the true nature of the offense committed). We

conclude that the trial court properly ordered the appellant to serve her sentence in confinement as

the evidence in the record wholly supports that conclusion.

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Conclusion

After a thorough review of the record, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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