IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 26, 2000, Session

STATE OF TENNESSEE v. WILLIAM BLAINE CAMPBELL

 Appeal from the Criminal Court for Washington County

No. 23956 Lynn W. Brown, Judge

No. E1999-02208-CCA-R3-CD 

September 29, 2000

The defendant appeals the sentence imposed for the offense of furnishing alcohol to a minor. The

defendant contends that he should have been granted judicial diversion and full probation. We

affirm the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ROBERT W. WEDEMEYER, JJ., joined.

Mark D. Slagle, Johnson City, Tennessee, attorney for appellant, William Blaine Campbell.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Joe

C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, William Blaine Campbell, appeals as of right from the sentence imposed by

the trial court for the offense of furnishing alcohol to a minor, a Class A misdemeanor. The

defendant was sentenced to eleven months, twenty-nine days, with fourteen days to be served in jail

and the remainder to be served on probation. On appeal, the defendant contends that the trial court

erred in denying him judicial diversion or full probation.

The defendant was indicted on eight counts of especially aggravated sexual exploitation of

a minor and one count of contributing to the delinquency of a minor. After the trial court granted

the defendant’s motion to suppress evidence, the state and the defendant agreed to proceed by

information upon a charge of furnishing alcohol to a minor, dismissing all nine counts of the

indictment. The defendant entered a guilty plea to this charge but did not acknowledge guilt. See

North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970); Dortch v. State, 705 S.W.2d

687, 689 (Tenn. Crim. App. 1985). The trial court accepted the plea. The defendant requested

judicial diversion and, alternatively, probation. The trial court held a sentencing hearing on these
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requests and denied judicial diversion but granted probation, subject to the defendant serving

fourteen days in jail.

At the sentencing hearing, the defendant was the only witness, and he testified that he taught

at East Tennessee State University School for seventeen years. He stated that one of his students,

Sam Harris, had written an extortion note, demanding $36,820. The note alleged that the defendant

had sexually assaulted Harris. The defendant said that the allegations in the note were completely

false and that, after unsuccessfully attempting to resolve the matter with Harris and Harris’s mother,

he took the note to the Johnson City Police Department. The defendant testified that the police got

a search warrant and searched his home. The search uncovered two videotapes of Harris in the nude.

The defendant said that he did not make the videotapes and had no knowledge of their existence until

they were found in his house. He stated that he believed that someone planted the tapes in his house,

commenting that a neighbor once saw Harris’s car at his house. The defendant said that he did not

furnish alcohol to a minor, although he knew that Harris; Tamara Baker, Harris’s ex-girlfriend; and

Ritchie Wiseman, Harris’s best friend, would testify that he did. He said that he was entering an

Alford plea just to end the entire matter.

I. JUDICIAL DIVERSION

The defendant contends that the trial court abused its discretion in denying him judicial

diversion. The defendant argues that (1) the court improperly considered the sexual offenses that

had been dismissed; (2) the court incorrectly found that the defendant abused a position of trust; and

(3) the court incorrectly determined that the defendant was not amenable to correction.

The decision whether to grant or deny judicial diversion is within the sound discretion of the

trial court and can only be overturned on appeal by the showing of an abuse of discretion. State v.

Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). We will not interfere with a denial of

judicial diversion “if there is ‘any substantial evidence to support the refusal’ contained in the

record.” Id. (quoting State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992)). 

In making its determination, the trial court must consider the following factors:

(a) the accused’s amenability to correction; (b) the circumstances of the offense; (c)

the accused’s criminal record; (d) the accused’s social history; (e) the status of the

accused’s physical and mental health; and (f) the deterrence value to the accused as

well as others. The trial court should also consider whether judicial diversion will

serve the ends of justice–the interests of the public as well as the accused.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citing State v. Hammersley, 650

S.W.2d 352, 355 (Tenn. 1983)). Further, if the trial court refuses to grant judicial diversion, then

it is required to place in the record specific reasons for its determination. Bonestel, 871 S.W.2d at

169.
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In the present case, the trial court considered each of the above factors and placed its findings

in the record as follows: First, the trial court found that the defendant’s amenability to correction

weighed against granting judicial diversion because the defendant, although having pled guilty to

furnishing alcohol to a minor, still insisted that he did not commit the offense. The court found that

this denial of guilt made the defendant’s amenability to correction questionable. Second, the trial

court found that the circumstances of the offense of furnishing alcohol to a minor weighed against

the defendant. The court focused on the abuse of a position of trust that was involved in this offense.

Third, the trial court found that both the defendant’s clean criminal record and his productive social

history weighed in his favor. Next, the trial court stated that because there was not a mental

evaluation of the defendant available, the physical and mental health of the defendant was a neutral

factor. The trial court also found that deterrence was not a factor in this case. Finally, the trial court

found that it was in the strong interests of the public not to tolerate teachers furnishing alcohol to

students. In its conclusion, the court stated that after weighing all of these factors, it was denying

judicial diversion, emphasizing the fact that the defendant had abused a position of public trust.

The defendant asserts that the trial court reached its conclusion based, in part, on the nature

of the sexual offenses that had been dismissed. Before the defendant testified, the trial court inquired

about what the state’s witnesses would have testified concerning the sexual offenses that had been

dismissed. Further, during and after the defendant’s testimony in which he gave his version of the

dismissed offenses, i.e., that he did not commit the acts alleged, the trial court commented on several

occasions about the underlying offenses. These comments were largely in response to the testimony

of the defendant. 

First, we do not believe that the trial court is prohibited in a sentencing hearing from

considering evidence about other purported offenses even if charges regarding those offenses have

been dropped. Obviously, the trial court in the present case could not consider evidence obtained

in violation of the defendant’s constitutional rights, but the record does not reflect that it relied upon

the suppressed evidence. See Tenn. Code Ann. § 40-35-209(b). In fact, the trial court stated that

it was inappropriate to consider such evidence. In any event, we note that the factors that the trial

court listed in considering diversion did not relate to the dismissed crimes. We conclude that the

trial court did not improperly consider the dismissed offenses.

The defendant also argues that the trial court abused its discretion in denying judicial

diversion because it improperly relied on abuse of trust as a factor in its decision. However, the

defendant’s abuse of trust is relevant to the circumstances of the offense. See, e.g., State v. David

E. Smith, Jr., No. 01C01-9805-CR-00224, Davidson County, slip op. at 9 (Tenn. Crim. App. June

9, 1999); see also State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996) (finding abuse of

trust as part of the circumstances of the offense in a probation determination). Thus, the trial court

appropriately considered abuse of trust. 

The defendant also argues that even if an abuse of trust is an appropriate consideration, it

does not exist in the present case. The defendant admits that the teacher-student relationship is one

of trust, but asserts that the court must find that the defendant abused his position during the

commission of the offense. Here, the defendant entered an Alford plea to the offense of furnishing
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alcohol to a minor. Moreover, he stipulated that the state’s proof would have been that he, a public

school teacher, provided alcohol to several of his students during a party hosted by him. These

circumstances indicate that the defendant abused his position of trust.

The defendant’s last argument on the judicial diversion issue is that the trial court improperly

determined that he was not amenable to correction. We note, though, that the trial court stated only

that his amenability to correction was questionable. It based its concerns upon the evidence showing

the defendant to be in denial. The defendant asserts that the mere fact that he entered an Alford plea

is insufficient to justify a finding that he was not amenable to correction. 

When a trial court exercises its discretion to accept an Alford plea, we question its use of the

defendant’s mere assertion of innocence at the time of the plea as a basis for denying diversion or

probation because of a lack of amenability to correction. See, e.g., State v. Andrew H. Leone, No.

02C01-9206-CR-00148, Shelby County, slip op. at 7 (Tenn. Crim. App. Sept. 29, 1993). However,

the trial court need not ignore the evidence, including the defendant’s testimony at the sentencing

hearing. In the present case, the defendant testified regarding many things and denied that any

wrong doing by him ever happened. It is apparent that the trial court did not credit all that the

defendant claimed. The record supports the trial court’s concern regarding amenability to correction.

In any event, the trial court based its denial of diversion primarily upon its determination that

the defendant abused his position of trust as a teacher by providing alcohol to minor students. In this

respect, we note that “the circumstances of the offense may alone serve as the basis for denial” of

judicial diversion. State v. Kyte, 874 S.W.2d 631, 634 (Tenn. Crim. App. 1993); see also David E.

Smith, Jr., slip op. at 9. The trial court also found that granting diversion would be against the strong

interests of the public in not tolerating such behavior by their teachers. Sufficient evidence exists

in the record to support the denial of diversion. 

II. FULL PROBATION

The trial court granted the defendant probation but ordered him to serve fourteen days in

confinement. The defendant contends that the trial court erred in requiring any confinement. The

defendant specifically asserts that the trial court failed to consider the applicable sentencing

considerations. 

In reviewing whether the trial court properly sentenced the defendant, we conduct a de novo

review of the record with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption of correctness is conditioned upon the affirmative showing that the trial court

considered the relevant facts, circumstances, and sentencing principles. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). 

The defendant first argues that the presumption of correctness cannot be applied in this case

because the trial court failed to discuss all of the enhancing and mitigating factors. This argument

is without merit. In misdemeanor sentencing, a trial court is required to consider these factors, but

it is not required to place specific findings on the record. State v. Troutman, 979 S.W.2d 271, 274
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(Tenn. 1998). Therefore, the presumption of correctness applies in this misdemeanor sentencing

case.

The defendant next argues that the trial court failed to consider the appropriate sentencing

considerations for imposing a sentence involving confinement under Tenn. Code Ann. § 40-35-103:

(1) Sentences involving confinement should be based on the following

considerations:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness

of the offense or confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.

In the present case, sections (A) and (C) are inapplicable. In fact, the trial court stated that the

defendant had no criminal record.

The defendant argues that section (B) also does not apply. Section (B) contains two

sentencing considerations for confinement. The first is that confinement is necessary to avoid

depreciating the seriousness of the offense. Although the trial court did not specifically state this

consideration in similar words, it concluded that the public had a strong interest in not having

teachers furnish alcohol to students. Section (B)’s second consideration is that confinement is

appropriate when it is “particularly suited to provide an effective deterrence to others likely to

commit similar offenses.” The trial court stated that deterrence was not a factor, noting that there

was no indication that the offense was a problem in the community. 

In our de novo review, we conclude that the trial court was justified in requiring fourteen

days in confinement. In the context of the circumstances of the offense, when a teacher supplies

alcohol to his students, it is a particularly aggravated form of the offense of furnishing alcohol to a

minor. Its seriousness should not be depreciated. Moreover, contrary to the trial court’s view, we

believe that confinement is particularly suited to deter other teachers from furnishing alcohol to their

minor students. Under these circumstances, the defendant’s confinement is justified.

In consideration of the foregoing and the record as a whole, the judgment of the trial court

is affirmed.

___________________________________ 

JOSEPH M. TIPTON, JUDGE