State v. Ingram ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
January 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9612-CR-00464
Appellee, * Loudon County
VS. * Hon. E. Eugene Eblen, Judge
GRADY STANLEY INGRAM, * (Attempt to Commit Aggravated Child
Abuse and Reckless Endangerment
Appellant. * with a Deadly Weapon)
For Appellant: For Appellee:
A. Philip Lomonaco John Knox Walkup
Attorney Attorney General and Reporter
112 Durwood Drive
Knoxville, TN 37922 Peter M. Coughlan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles Hawk
District Attorney General
and Roger Delp
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Grady Stanley Ingram, was indicted for aggravated
child abuse, four counts of aggravated assault, and four counts of felony reckless
endangerment. By plea agreement with the state, the defendant pled nolo
contendere to one count of attempted aggravated child abuse, a Class B felony, and
one count of felony reckless endangerment, a Class E felony. Range I sentences of
eight years and one year respectively were ordered to be served consecutively. The
trial court denied probation and ordered the sentences to be served in the
Department of Correction.
In this appeal of right, the defendant insists that the trial court erred by
denying an alternative sentence to prison. We find no error and affirm the judgment
of the trial court.
At the sentencing hearing, it was established that on or about March
26, 1995, Stanley Drake Ingram, the infant son of the defendant, was found to be
suffering from a skull fracture, intercranial hemorrhaging, bilateral retinal
hemorrhaging, and two broken legs. During the hospital examination, the medical
staff discovered a second, older cranial injury. The victim had been released from
the hospital at 5:00 P.M. on the previous day after treatment on an unrelated matter
and was returned at 3:00 A.M. on March 26. The injuries to the victim occurred
during that time interval. The defendant was alone with the victim during the time
the injuries occurred.
Medical testimony established that the head injuries were consistent
with shaken baby syndrome and had caused a disabling brain injury to the victim.
By the time the child was twenty-one months old, in August of 1996, doctors had
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determined that the victim had a "striking ... amount of retardation"; because the
child's mental development was approximately that of a one- to three-month-old
infant, doctors predicted that the victim would not improve in the future and would
require total "care for the rest of his life...." The victim is now in the custody of his
grandparents.
On January 30, 1996, the defendant, who was intoxicated at the time,
fired several shotgun blasts into a residence occupied by Paul, Alisa, Regina, and
Philip Helton. The reckless endangerment conviction is based upon that incident.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
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Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). There is no such presumption for a Class B felon. Tenn. Code Ann. § 40-
35-102(6). With certain statutory exceptions, none of which apply here, probation
must be automatically considered by the trial court if the sentence for each
conviction is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).
A sentence of split confinement involves the grant of probation after
the partial service of a sentence. Tenn. Code Ann. § 40-35-306. It may include a
jail or workhouse sentence of up to one year with the probationary term to extend for
any period thereafter up to the statutory maximum for the offense. Id.The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
does not mean that he is entitled to be sentenced under the act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following
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offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
The defendant, now thirty-two years of age, resides with his wife, Jerri,
and another son, Trey. He attended Lenoir City High School and obtained a
Graduate Equivalent Diploma from Pellissippi State Community College in October
of 1992. The defendant has worked as a carpenter or laborer on a job-to-job basis.
The defendant testified that he had been an alcoholic since he was
fifteen years old. He described the victim as having been born prematurely due to
complications during the pregnancy of his wife and, prior to his head injuries, not
nearly as active as his older child. Just prior to the March 26 incident, the victim had
been hospitalized for approximately six days for a virus. Upon the family's return
home from the hospital, the defendant, who claimed he "needed a drink bad," tried
to get the victim to go to sleep and described the course of events as follows:
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When I was hopping up and down, I had my hand
between his shoulder blades, instead of up against his
head, supporting it up against me. And I know that's
what did it. And I [am] going to have to live with that for
the rest of my life. Just because I wanted a drink. I
wanted ... him to go to sleep quick, so I could go get me
a beer.
By the time of the sentencing hearing, the defendant had actively
participated in Alcoholics Anonymous, undergone a five-day detoxification program
and an intensive twenty-eight-day outpatient plan. He had been alcohol-free for
seven months and had taken Antabuse as a means of deterring his desire for
alcohol. The defendant had successfully completed a parenting program provided
by Another Direction Programs, Inc.
The defendant had no recollection of the shooting incident other than
waking up in jail. He testified that he had a toothache prior to that occurrence and
had consumed two liters of Wild Turkey in less than four hours. He learned later
that he had shot a gun in the neighborhood and struck the Heltons' residence.
The defendant, who testified that alcoholism "runs in my family [and
e]verybody that drinks, dies with a beer in their hand," has a prior criminal history, all
of which is alcohol-related. There have been several convictions for driving under
the influence of alcohol, public drunkenness, and driving on a revoked license. The
defendant has served several jail terms for these offenses. In denying any
alternative sentence, the trial court placed particular emphasis on the nature and
circumstances of the crime against the minor victim. Describing the injuries as
"lifelong," the court ruled out both probation and split confinement. While
acknowledging the defendant had made progress in his attempts at rehabilitation,
the trial court expressed particular concern about the defendant's commission of the
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second crime while he was on bail for the first.
Attempted aggravated child abuse qualifies as a violent, felony offense
involving a crime against a person. See Tenn. Code Ann. § 40-36-106(a)(2), (3). In
our view, the attempted aggravated child abuse conviction precludes consideration
for the Community Corrections program. See State v. Birge, 792 S.W.2d 723, 725
(Tenn. Crim. App. 1990).
Even if the defendant had been eligible for Community Corrections,
this court would have rejected the application on the same grounds as relied upon
by the trial judge. The same is true regarding the request for immediate probation or
a sentence of split confinement. Primary among the purposes of the Criminal
Sentencing Reform Act of 1989 is the goal to punish a defendant "in relation to the
seriousness of the offense." Tenn. Code Ann. § 40-35-102(1). Moreover, the
defendant qualifies as having a lengthy history of criminal conduct. Tenn. Code
Ann. § 40-35-102(3)(B). It is also significant that after being charged with
aggravated child abuse, the defendant committed felony reckless endangerment.
In our view, an order of confinement in these circumstances is
"necessary to avoid depreciating the seriousness of the offense...." Tenn. Code
Ann. § 40-35-103(1)(B). One of the treating physicians described the injuries as
follows:
Drake Ingram has a developmental equivalent of a two to
three month old at the present time [at age seventeen
months]. He should be walking, ... he should be playing;
he is unable to do any of these normal routine
developmental acts. He is probably blind, or if not, has
severe visual impairment.... [He] will never be the same.
He will always be severely neurologically impaired. He
will never have the chance to run with other children, to
go to a regular school, and to be a regular "normal kid."
The severity of the child's injury is enormous and the
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neurologic impact cannot be reversed.
In summary, we defer to the presumptive correctness of the ruling of
the trial court. The nature and circumstances of the offense and our concern that
the grant of an alternative sentence would depreciate the seriousness of the crimes
outweigh all other factors which might tend to suggest a more lenient sentence. Cf.
State v. William Jerry McCord, No. 03C01-9501-CR-00014 (Tenn. Crim. App., at
Knoxville, Nov. 29, 1995).
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David H. Welles, Judge
_____________________________
Jerry L. Smith, Judge
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