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State v. McLerran

Court of Criminal Appeals of Tennessee, Nashville

August 16, 2017

STATE OF TENNESSEE
v.
KRISTIE LOUISE MCLERRAN

          Assigned on Briefs July 19, 2017

         Appeal from the Criminal Court for Clay County No. 2011-CR-55 David A. Patterson, Judge

         The Defendant, Kristie Louise McLerran, entered a plea of nolo contendere to attempted aggravated child neglect, a Class B felony, as a Range I, standard offender and to serve an eight-year term with manner of service to be determined by the trial court. At the sentencing hearing, the trial court imposed a term of incarceration, finding that confinement was necessary to avoid depreciating the seriousness of the offense. The Defendant appeals the trial court's denial of alternative sentencing. We conclude that the trial court did not err in sentencing the Defendant to a term of imprisonment. Accordingly, we affirm the judgment of the trial court.

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

          Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Kristie Louise McLerran.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Mark Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         Although the plea submission hearing transcript is not included in the record, we glean the following facts from the allegations contained in the indictments against the Defendant and testimony provided at the sentencing hearing. Between January 1, 2011, and February 8, 2011, the Defendant and her husband, Mr. Timothy Curtis Bailey, neglected their two month old infant's health and welfare and caused serious bodily injury to the infant who is the victim. On October 29, 2013, a Clay County Grand Jury indicted the Defendant and Mr. Bailey on one count of aggravated child neglect and four counts of aggravated parental or custodial child endangerment. On May 23, 2016, the Defendant entered a plea of nolo contendere to attempted aggravated child neglect, a Class B felony. See T.C.A. §§ 39-12-107(a), 39-15-401(b) (2010), 39-15-402(a)(1), (b) (2010). Pursuant to the plea agreement, the Defendant was to receive an eight-year sentence as a Range I, standard offender, and a sentencing hearing was to be held to determine whether the Defendant would serve her sentence in confinement or on probation.

         At the August 9, 2016 sentencing hearing, Tiffany Lawson, a probation officer, testified that she prepared the Defendant's pre-sentence investigation report, which was admitted into evidence. She also testified that the Defendant did not report to the scheduled in-person meeting to prepare the report but rather mailed her the information instead. Ms. Lawson read from the Defendant's statement. The Defendant wrote that she gave birth to the victim in December 2010, that the victim was premature, and that she breastfed the victim. The Defendant stated that her "milk was 16.2 when it's supposed to be 22.1" and that "[t]he doctors thought I starved him, but would never do that to my child or any child." Ms. Lawson stated that there were no mitigating factors to note in the pre-sentence investigation report. She also stated that the Defendant's prior criminal history included a criminal trespass conviction, which she served on probation, and some traffic citations. She testified that as of the time of the hearing, the Defendant had failed to submit a urine sample for drug screening. She also testified that the Defendant had completed a treatment program as required by the Department of Children's Services and, although unverified, was employed.

         On cross-examination, Ms. Lawson testified that the Defendant had been released on bond for almost five years and that there was no indication that the Defendant had issues complying with the terms of her bond. Ms. Lawson also testified that the report contained a summary of the facts culled from the medical records regarding the child neglect. She stated that the victim was born around December 12, 2010, and that the Defendant and victim were released from the hospital on December 16. The Defendant had an appointment with Dr. Mark Langenberg on December 28 and a follow up visit to the health department two days later. The Defendant missed several scheduled doctor's visits before going to the doctor thirty-seven days after her last visit with Dr. Langenberg. Dr. Langenberg noted that the victim was malnourished and told the Defendant to have the victim admitted to the hospital, where Dr. Sandra Moutsios treated the victim. Ms. Lawson stated that the medical reports indicated that the child's "failure to thrive" was due to a lack of nutrition and not attributable to any other reason. She also stated that Dr. Moutsios indicated concern over a positive drug screen result from the Defendant's breast milk. Defense counsel introduced a note from Dr. Ashley Toriac, a pediatrician from the hospital, that stated that the Defendant's positive drug screen was a false positive and that the breast milk was "normal." Ms. Lawson testified that the Defendant reported pumping breast milk for the victim and giving the victim supplemental milk. She also testified that the Defendant missed their first scheduled meeting for completing the sentencing report questionnaire because the Defendant's husband had been arrested and that the Defendant missed their second scheduled meeting because she overslept.

         Dr. Sandra Moutsios, who was accepted by the trial court as an expert in pediatrics, testified that part of her role as a pediatrician is to identify child abuse victims and consult in their treatment. She testified that on February 8, 2010, the victim was admitted into the pediatric intensive care unit (PICU). On February 10, 2010, Dr. Moutsios met with the victim in her role as an abuse care consultant. She stated that upon arrival at the emergency room, the medical staff noticed that the victim was "severely underweight." She also stated that the victim had a glucose level of 27 and was admitted to the PICU for "profound malnutrition, failure to thrive, and life threatening hypoglycemia." Dr. Moutsios explained that a normal gluscose level is between 70 and 110 and that the victim's hypoglycemia "put him at a high risk for seizure and hypoglycemic coma, " which can be life threatening. She also explained that failure to thrive is when an infant is unable to gain weight. She testified that upon the victim's admission to the emergency room, the victim weighed five pounds and one ounce, compared to his birth weight of five pounds and eleven ounces. She also testified that there was no other "organic cause for his failure to gain weight."

         In response to questioning by the trial court, Dr. Moutsios explained that the victim "was born four weeks early and in the last month of a pregnancy is when a lot of the extra fat stores come on a baby." She read from the summary of her report that ...


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