### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 26, 2000, Session

STATE OF TENNESSEE v. WILLIAM BLAIN E 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 gran ted judicial diversion and full probation. We affirm the trial c

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

J OSEPH M. T IPTON , J., delivered the opinion of the cour t, in which J OHN E VERETT W ILLIAM S and R OBERT W. W EDEMEYER , JJ., joined.

Mark D. Slagle, Joh

nson City, Tennesse

e, attorney for a

ppellant, William Bl

aine Campbell.

Paul G. Summers, Attorney Generaland Reporter; R. Stephen Jobe, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assista nt District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Willi

am Blaine Campbell,

appealsas 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, twe

nty-nine days, wit

h 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 delinquencyof a minor. After the trial court granted the de fe ndant’s motion to suppress evidence, the state and the defendant agreed to proceed by information upon a charge of f urnishin g 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). T he trial court accepted the plea. The defendant requested judicial diversion and, alternatively, probation. The trial court he ld a sentencing he

aring on these-2-

requests and denied judicial diversion but granted probation, subject to the de fendant serving fourteen days in j ail.

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

e State University

School for sevent

een years. He st

ated that one of hi

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

d Harris. The def

endant said that th

e allegations in the

note were comple

tely 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 o

f their existence

until they were found in his house. H e stated that he be

lieved that someon

e planted the tape

s in his house, commenting that a neighbor once saw Harris ’s car at his house . The defendant s aid that he did

not furnish alcohol to

a minor, although he knew that Harris; Tamara Baker, Harris’s ex-girlfriend; and Ritch ie Wiseman, Harris ’s best friend, wo uld testify that he d

id. He said that he

was ente ring a n Alford plea just to end the entire matter.

I. JUDICIAL DIVERSI ON

The defendant contends that the trial court abus ed its d iscretion in denying him judicial diversion. T he 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 judic

ial 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 substant ia l 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 deter

mination, the trial

court must conside

r the following fa

ctors:

(a) the accused’s a

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

Statev. 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.-3-

In the present case, the trial court co nsidered each o

f the above fac

tors and placed it

s findings in the record

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

l 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 trialcour t 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 a

lso found that deterr

ence was not a fa

ctor in this

case. Finally, the trial court found that it was in the strong interests of the public not to tole

rate teachers

furnishing alcoho

l to students. In its conclusion, t he court stated th

at after weighin

g all of these

factors, it was denying judicial diversion

, emphasizing the f

act that the defe

ndant had abused a

position of public tr

ust.

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 underly ing offenses. The

se comments were

largely in response to the testimony of the defendant.

First, we do not believe t h at 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 t he suppressed evidence. See Tenn. Code Ann. § 40-35-209(b). In fact, the trial court stated tha t it was inappropria

te to consider such evidence. In any event, we note that the factors that the trial court listed in consideri

ng diversi on did not re late to the dismissed crimes. We conclude that the trial court did not i

mproperly conside

r the dismissed off

enses.

The defendant also argu es that the trial court abused its discretion in denying judicial diversio n b ecause it improperly relied on abuse of trust as a factor in its decision. However, the defendant’s ab

use 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) (findin g abuse of trust as part of the circumstanc

es of the offense

in a probation dete

rmination). Thus,

the trial court appropriately considered abuse of trust.

The def endant also argu

es that even if an

abuse of trust is a

n appropriate co

nsideratio n, i t 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 po sition during the commission of the offense. Here, the defendant entered an Alford plea to the offense of furnishing-4-

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 par ty hosted by him. The se circumstances in

dicate that the de

fendant abused h

is position of trust.

The defendant’s las

targument on the judicial diversion issue is that the trial court improperly determinedthat he was not amenable to correction. We note, though, that the trial court state d 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 denyingdiversion 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 ca se, the defenda

nt testified rega

rding many thin

gs and denied that any wrong doing by him ever happene d. It is a pparent that the trial court did not credit all that the defendant claimed. The record supp orts 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. Statev. 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 dive

rsion 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 ass

e rts 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 pres umpti on of correctne ss. Tenn. Code Ann.

§ 40-35-401(d). T

his 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 pr

esumption of corr

ectness cannot b

e applied in this ca

se 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, 274-5-

(Tenn. 1998). Therefore, the presumption of correctness app li es 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 c o nfinement should be based on the following considerations: (A) Confinement is nec

essary to protec

t society by rest

raining a defendant who ha

s a long history of c

riminal conduct; (B) Confinement is nece ssary to avoid deprecia ting the seriousne

ss of the offense

or con finement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measures less res tric tive than confinement have frequently or recently been a

pplied unsuccess

fully to the defen

dant.

In the present case, sections (A) an d (C) are inap plicable. 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) co nta ins two sentencing considerations f or confinement. T

he first is that con

finement is nece

ssary to avoid depreciating the seriousness of the offense. Alth

ough the trial cour

t did not s pecific ally state this consideration in similar word s, it conclude d that the public had a strong interest in not having teachers furnish alcohol to students. Section (

B) ’s secon d consideration is that confinement

is appropriate

when it is “partic

ularly suited to pro

vide an effecti

ve deterrence

to oth ers lik ely to commit similar offenses.” Thetrial court state d that deterrenc

e 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 f

urnishing alcohol t

o 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