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State v. Baysinger

Court of Criminal Appeals of Tennessee, Knoxville

December 23, 2019

STATE OF TENNESSEE
v.
JAMES R. BAYSINGER

          September 24, 2019 Session

          Appeal from the Criminal Court for Anderson County No. B7C00320 Donald R. Elledge, Judge

         The Defendant, James R. Baysinger, pleaded guilty to reckless homicide, a Class D felony. See T.C.A. § 39-13-215 (2018). Pursuant to the plea agreement, the trial court was to determine the length and the manner of service. The trial court sentenced the Defendant to two years and ordered him to serve five months, followed by four years' probation. On appeal, the Defendant contends that the court erred by denying his requests for judicial diversion and full probation. We reverse the judgment of the trial court and remand the case to the trial court for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded

          Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, James R. Baysinger.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and Robert W. Wedemeyer, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case arises from the 2015 accidental drowning death of a five-year-old boy who had been in the Defendant's care at the time of the incident. The Defendant was indicted for reckless homicide and aggravated child abuse or neglect. Pursuant to the plea agreement, the Defendant pleaded guilty to reckless homicide, the State dismissed the remaining charge, and the trial court would determine the length and the manner of service of the sentence. The guilty plea transcript is not included in the appellate record.

         At the sentencing hearing, the presentence report was received as an exhibit. The report reflected that the sixty-four-year-old Defendant did not have any previous convictions. The report showed that the Defendant obtained a two-year degree in electronic engineering. The Defendant denied having received mental-health treatment, alcohol or drug treatment, and family therapy. He reported having high blood pressure and mild arthritis. The Defendant had been raised by his mother and his grandparents, after his father left when he was age five. The Defendant had two adult sons. The Defendant's employment history showed that he received an honorable discharge from the United States Air Force and that he had continuous employment from 1972 to the time of the presentence investigation. He had worked for Stevens Beechcraft, Hammond House of Music, and Tennessee Valley Authority. The report reflected that the Defendant's risk of recidivism was "minimal."

         The Defendant told the presentence investigator that on June 24, 2015, he agreed to care for the victim and his siblings at the children's home at the request of their mother. The Defendant stated that, at some point, he could no longer see the victim, that the other children identified places the victim liked to hide, and that he looked for the victim in those places. The Defendant said that after he could not find the victim, he sent a text message to the victim's mother, who responded that the victim "had done this before." The Defendant said that the victim's mother called him on the telephone, told him she was returning home, and asked him not to do anything until she arrived. The Defendant said that when the victim's mother arrived, she told him and the other children to "fan out and yell" the victim's name, that the victim's mother threatened to call the police if the victim did not come out from hiding, and that she called the police at some point. The Defendant stated that several hours after the police arrived, the victim was found in the creek. The Defendant said, "I was utterly devastated because I cared a lot for this little boy, and he loved me very much. I was in a state of shock for weeks, crying [every day] without warning. I am so very sorry that this ever happened[.]"

         The victim's mother told the presentence investigator that she and the Defendant were friends and that she asked the Defendant to care for four of her five children, including the victim who had "special needs." The victim's mother said that she told the Defendant to keep the children inside until she returned home. She said she received a text message from the Defendant stating that he could not find the victim. She said that although the victim had a "habit" of hiding, her other children reported that the Defendant had been working on his computer. The victim's mother reported that since the victim's death she attended counseling once per week, had post-traumatic stress disorder (PTSD), and suffered from depression. She said that she previously suffered from anxiety and suicidal thoughts. The victim's mother stated that "some" of her other children attended counseling for depression and PTSD because of the victim's death. The victim's mother stated that the Defendant did not "seem to show the remorse . . . [of] an average person," although the Defendant had asked her to forgive him and told her he wanted to help her cope with the loss of the victim.

         Anderson County Sheriff's Investigator Sean Flynn testified that the police had been looking for the victim for several hours before Investigator Flynn arrived at the scene around 7:00 p.m. He recalled deputies initially responded to the scene around 1:00 p.m. Investigator Flynn said that several units were involved, along with agencies from a neighboring county, in searching for the victim. He noted that several officers who were involved in the search were familiar with the victim and the victim's family. Investigator Flynn said he spoke to the victim's mother, who said that the victim might have suffered from "some kind of disability."

         Investigator Flynn testified that, at the request of the victim's mother, the Defendant arrived at the victim's home the night before the incident. Investigator Flynn said that the Defendant was asked to care for four children the next day in order for the victim's mother to conduct business at the courthouse. Investigator Flynn said that the Defendant said the victim's mother left the home around 10:30 a.m. Investigator Flynn said the Defendant reported that the victim went outside, that the Defendant sat at the kitchen table, and that the Defendant was "involved" with other children inside the kitchen. Investigator Flynn said that he sat at the kitchen table on a chair identified by the Defendant, that Investigator Flynn could see into the backyard from this chair, and that Investigator Flynn could see a hammock and wading pool, where the Defendant had seen the victim. Investigator Flynn said that the Defendant reported seeing the victim for the last time around the hammock at 11:00 or 11:05 a.m.

         Investigator Flynn testified that, when the Defendant lost sight of the victim, the Defendant said he looked for the victim in an outbuilding. Investigator Flynn said that the Defendant sent the victim's mother a text message at 11:35 a.m. relative to the places the victim liked to hide. Investigator Flynn said that the victim liked to hide and that the victim's mother identified the victim's favorite places to hide. Investigator Flynn said that the Defendant reported having all of the children assist in looking for the victim and that the Defendant sent another text message to the victim's mother at 11:49 a.m. stating that they had not found the victim. Investigator Flynn said that the victim's mother sent a text message to the Defendant stating that she was on her way home and that she arrived home at 12:00 p.m. Investigator Flynn said the Defendant stated that he and the victim's mother looked for the victim before calling the sheriff's office.

         Investigator Flynn testified that the victim was found about 250 yards from the home submerged beneath five feet of creek water. Investigator Flynn said that the victim had old abrasions on his elbow, ankle, and jaw and that he saw nothing to suggest "foul play." Investigator Flynn said that the foam around the victim's nostrils and mouth was indicative of drowning. Investigator Flynn described the creek as having an area in which the water accumulated to form a pond-like area and said that children used a rope swing to play in the water. He said that a partially submerged tree went from the shoreline of the pond to the rope swing. He recalled that the victim wore swimming trunks, which were on backward.

         On cross-examination, Investigator Flynn testified that although the Defendant had been around the children previously, the Defendant had never babysat them. Investigator Flynn agreed that the Defendant was not a paid caregiver and that the Defendant cared for the children on the day of the incident to help the victim's mother. Investigator Flynn agreed that the victim's mother needed the ...


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