Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 28, 2017 at Knoxville
from the Criminal Court for Davidson County No. 2016-I-841
Cheryl A. Blackburn, Judge
defendant, Jesse Charles Gerg, was sentenced to eight years
in confinement by the trial court for his Class D felony
conviction for child abuse. On appeal, the defendant argues
the trial court improperly enhanced his sentence as a Range
II offender from the minimum of four years to the maximum of
eight years in violation of the purposes and principles of
the Tennessee Criminal Sentencing Reform Act. The defendant
also argues the trial court failed to properly consider his
request for alternative sentencing. Following our review of
the briefs, the record, and the applicable law, we affirm the
eight-year sentence to be served in confinement.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Lawrence Ballew, Nashville, Tennessee, for the appellant,
Jesse Charles Gerg.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Assistant Attorney General; Glenn Funk, District
Attorney General; and Jeff George, Assistant District
Attorney General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROSS DYER, JUDGE.
November 10, 2016, the defendant entered a guilty plea for
child abuse of a minor under the age of eight years old in
violation of Tennessee Code Annotated section 39-15-401(a).
At the guilty plea hearing, the State recited the following
facts surrounding the abuse into the record:
Honor, in this case the victim is the child of the
defendant's girlfriend. The victim's birthday is
12-22 of 2010. She was four-years (sic) old at the time of
this incident. The victim is also diagnosed with autism and
When the child's baby-sitter was changing her diaper, she
noticed multiple concerning marks on the child's buttocks
and confronted the defendant. The defendant admitted to her
that he caused the injuries by striking the victim multiple
times with a belt. The defendant also admitted that he caused
the same injuries to the victim's mother who is his
girlfriend. Officers responded and documented the
victim's injuries and noted multiple black, blue, and red
lateral marks and bruising on the victim's buttocks.
Elizabeth Rogers, who is an investigator with the Department
of Children's Services, interviewed the defendant and the
defendant admitted to her that he, quote, spanked [the
victim] with a belt a little too hard. The defendant also
stated that because the victim is autistic, quote, she gets
out of control sometimes and starts throwing food and hitting
the walls. And the defendant stated, the victim was out of
control, quote, so I had to pop her. All of these facts
occurred in Davidson County.
defendant agreed to the accuracy of the facts, but claimed at
the time of the abuse, the victim "was trying to put
objects in the electrical outlets and . . . she just kept
doing it over and over." After a thorough plea colloquy,
the trial court found the guilty plea was "voluntarily
and factually based, " and entered a conviction for
child abuse against the defendant.
to sentencing, the State filed a "Statement of
Enhancement Factors and a Notice of Enhanced Punishment"
with the trial court. According to the State, five
enhancement factors applied to the defendant, including: (1)
"[t]he defendant has a previous history of criminal
behavior in addition to those necessary to establish the
appropriate range;" (2) "[the] victim of the
offense was particularly vulnerable because of age or
physical or mental disability;" (3) "[t]he
defendant, before trial or sentencing, failed to comply with
the conditions of a sentence involving release into the
community; (4) "[a]t the time the felony was committed,
the defendant was released on probation;" and (5)
"[t]he defendant abused a position of public or private
trust in a manner that significantly facilitated the
commission or the fulfillment of the offense." Tenn.
Code Ann. § 40-35-114 (1), (4), (8), (13)(C), (14). In
its notice, the State also relied on two prior, Class E
felony convictions from Wilson County upon which it sought to
seek enhanced punishment, including a conviction for burglary
of an automobile entered on May 11, 2009 and a conviction for
conspiracy to obtain drugs by fraud entered on May 14, 2011.
During the sentencing hearing, the State presented evidence
in support of the above listed enhancement factors. The
State's evidence included the presentence report, which
listed twenty-three prior misdemeanor convictions, certified
copies of the defendant's prior felony convictions, and
photos of the injured victim. The defendant then testified on
his own behalf.
the abuse, the defendant stated he did not intend to harm the
victim when he hit her with a belt. Rather, the defendant
stated he was disciplining the victim "[o]ut of . . .
[c]oncern for her safety, " because she kept placing
objects in an electrical outlet. The defendant stated,
"I take full responsibility for what I've done, and
I'm sorry for what happened." The defendant then
read a letter into the record, stating the following:
Okay. I'm sorry -- I'm sorry for what I have done. I
have been incarcerated since January 2016. I haven't been
in any trouble. This time in jail has made me do a 180
percent turnaround for my life. I have certification for the
New Life program, which is a class that took fourteen weeks
and twenty hours of classroom instruction to complete. Will
you, please, give me one chance to have a suspended sentence.
I have a family for support that really needs me right now.
I'm not a bad person. I want a chance to become a
successful family man. What I did was an accident and not