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State v. Gerg

Court of Criminal Appeals of Tennessee, Nashville

December 7, 2017

STATE OF TENNESSEE
v.
JESSE CHARLES GERG

          Assigned on Briefs November 28, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2016-I-841 Cheryl A. Blackburn, Judge

         The 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.

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

          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.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         FACTS

         On 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:

          Your 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 mental retardation.

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.

         The 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.

         Prior 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.

         Regarding 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 intentional. ...

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