1 This co urt refers to m inor victim s of sex crim es only b y their initials.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE January 23, 2002 Session
STATE OF TENNESSEE v. WAL TER MCGILL
Direct Appeal from the Criminal Court for Knox County

No. 71223 Ray L. Jenkins, Judge

No. E2001-01074-CCA-R3-CD Filed April 24, 2002

The appellant, Walter McGill, pled guilty to one count of sexual battery by an authority figure and
was sentenc ed to five

years incarce

ration in the Tennessee Department of Corre ction. On

appeal, the appellant contend s th at the trial court erred in failing to grant him full probation, or, in the alternative, split confinement. Upon review o f the record and the parties’ briefs, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med.

N O RMA M C G EE O GLE , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., an d J OSEPH M. T IPTON , J., joined.
Donald A. Bosch, Lisa B. Morton, and Keith D. Stewart, Knoxville, Tennessee, for the appella nt, Walter M cGill.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney Genera l; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

I. Factua

l Background At the appellant’s guilty plea hearing, the State recited the following

stipulate d facts underlying the appellant’s guilty plea:

[O]n March 1 7, of th e year 2000 that the [appellant] was a dra fting teacher at Carter HighSchool here in Knox Cou nty, that [ D.S. 1 ] was
a student at Carter High School at th at time. Th at as a r esult of h is status, that the [ appella

nt] touched her in her vaginal area. That the-2- [appell ant] gave a st

atement t o members o f the Kno x County Sheriff’s Departm

ent admitt

ing that he

had touch

ed [D.S. ] in that
area.

. . . . [D.S. ] was between the statutory ages of 13 and less than 18 at [t h e time of the offense]. Upon hearing the stipulated facts, the trial court accept ed the ap pellant’ s plea of

guilt to one count of sexual battery by an authority figure, a class C felony. See Tenn. Code Ann. § 39- 13-527(a)(1) (1997). The trial court sentenced the appellant as a standard Range I offende r to five years incarceration. The

trial court further denied the appellant alterna tive sentencing and

ordered the appellant to serve his sen tence in confinement. The appellant now appeals the denial of alternative sentencing. II. Analysis

This court rev i ews challenges to the manner of ser vice of a sentence de novo. Howeve r, if the rec ord reve als that the trial court adequately considered sentencing principles and all r ele vant facts and cir cumstanc es, this c ourt will a ccord th e trial c ourt’s de

terminat ions a presumption of correctness. Tenn. Code Ann. § 40-35-401 (d) (199 7); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Regar dless, we must consid

er the f ollowing factor s in the course of our de
novo review: (1) the evidence, if an y , received at the trial and the sentencing hearing; (2) the presentencereport; (3) the principles of sentencing a nd arguments as to sentencing alterna tives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on enhancement and mitigating factor s; (6) an

y st atement b y th

e appell ant in

his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (199 7), -210 ( 2001 Supp.) ; see al so Ashby , 823 S.W.2d at 168. The burden is on the appellant to demonstrate the impropriety of his sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In the tr ial co urt, b ecause the ap pella nt is a Range I standard offende r convicted of
a class C felony, he w as presumed to be a favorable candidate for alternative sentencing, Tenn. Code Ann. § 40-35-102(5)-(6) (1997), and the State bore the burden of ov ercoming that presumption. Statev. Lane , 3 S.W.3d 456, 462 (Tenn. 1999). H owever, the appellant bore the burden of establishing his suitability for full probation, even if he wa s entitled to the statutory presumption of alternative sentencing. State v . Grissom , 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997). The appellant was required to establish that granting him full probation would “subserve the ends of justice and the be st intere st of both the public and the [appellant].” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by Statev. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). In denying the appellant alternative sentencing, the trial court state d:

The Court has had the bene fit of th e presentence investigation; the psycholog ical report o f Dr. Lyo ns; a lette r–oh, ye s, the–the

victim-3- impact statements filed by the mother, the father, step mother of the victim; als o lettersfrom Dr. Fain and tw o friend s, the Ha kes.

. . . . The Court has considered the [appellant’s] interest, his behavioral record, his employment history, and social history, his present condition, including physical and mental, the interes t of t he public, the need of

deterrence of

the kind of

crime fo r which th

e [appe llant] has committed.

The Court also is of the opinion that the [appellant] has demonstrated his lack o f se lf-disci

pline. He

has failed and ref

used to br

ing his conduct in line with conduct required in a civilized society.

The C ourt sentences the [appellant] under the provisions of [Tenn
. Code Ann. §] 40-35-103, Section 1(B), that confinement is necessary to avoid de preciat ing the se riousnes s of the of

fense a nd is suited

to provide an effective deterrenc e to others likely to commit similar offense s. All of which require the imprisonment of the[appell ant] for his own best interest and especially for the protection of the public. Initially we note that, contrary to the appellant’s contention, there is an af firmative showing in the record that the trial court “consider[ed] the circumstanc es of t he offense, the [appell ant’s] criminal record, the [appellant’s] social history and pre sent condition, t he need for deterrence, and

the best interest of the [appellant] and the public.” State v. Batey , 35 S.W.3d 585, 588 (Tenn. Cr

im. App. 2000 ). The tr

ial cour t specifi cally not

ed the he avy weight it

placed upon the victim impact sta

tements because

the state ments revealed the “complete devastation of the victim.” Furthermore, the trial court considered the psychological report filed by Dr. Bernard F. Lyons, Jr., after the appellant submitted to an evaluation, and the trial court noted specific portions of the report in support of its ruling. Consideration of such a report is mandated by Tenn. Code Ann. § 39-13- 705 (2001 Supp.), wh

ich statut e provide s: (a) On and after Janua

ry1, 1996, each sex offender who is to be considered

for probation or any

other alterna tive sente ncing sh all be required to submit to a

n evalua tion for tr

eatment, risk pote

ntial, procedures required

for monitoring of behavior to protect victims and potential victims, and an identification under the procedures developed pursuant to § 39-13-704(d)(1). (b) Those offenders found guilty

at trial or who pled guilty without an agreement

as to length of sentence

and/or probation and/or alternative sentencing that are to have a pre-sentence r eport prepared for submission to the cou

rt shall be require d to submit to the evaluation referred to in subse ction (a

). Such evaluatio n shall

be included as part-4- of the pre- sentenc e repor

t and shall be consi d er ed by the cour t in determining the sente

ncing is sues her

ein state d. If

the cour t grant s probation or al te rn at iv e s en te nc in g, an y p l an of treatment
reco mmen ded by such evalua tion shall be a condition of the probation
or alternative sentencing. Those offe nders, that, as part of a negotia ted settlement of their case, are to be placed on pr obation or alternative senten c ing shall be required to submit to the evaluation referred to in subsecti o n (a) as a condition of their probation or alt er native sentencing and any plan of treatment recommended by such evaluat ion shall be a condition of probation or alternative sente ncing. Accord ingly, we will revie

w the tria l court’sfindings d

e novo wit

h a presu mption of c orrect

ness.
The appellant argues that “although the trial court cited a statute, it failed to specify whet herthe sentence was calculated to avoid depre ciating the seriousness of the crime or to deter others. The trial court

merely cited the code provision and its language.” We disagree. It is true that the trial court announced that it was denying probation based upon Tenn. CodeAnn. § 40-35-103 (emphas is added) , which sta tute provides: (1 ) Se ntences involving confinement should be based on the following consider ations:

. . . . (B) Confinement is nec essar y to avoid d epreci ating the

seriousness of the offense o r

confi nement is particularly suited to provide an effectivedeterre nce to others likely to commit similar offenses. . . . However, our rea

ding of the

record reveal s that the trial court’s intent was to deny probation based upon both

the seriousness of the offense and the deterr ent value of confinement.

It is well-established that, “if probation is to be denied because of the nature of the offense, it would have to be clear that the criminal act, as committed, w ould be described as especia lly violent, h orrify

ing, sho cking, repreh

ensible, offensi ve, or oth

erwise o f an exce ssiv e o r exaggerated

degree.” State v. Travis , 622 S.W.2d 5 29, 534 (T enn. 1981 ); see also State v. Fletcher , 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). Dr. Ly ons’ report

notes that the appellant and D.S. became familiar during interactions in and out of the classroo m setting. According to Dr. Ly ons, the appellant

told him that D.S. sat in the front row of his class and he talked to and helped hermo re than other students. During the course of the ir conversations, the appellant lear ned tha t D.S.’s boyfriend ha

d “dumped” her. He “concluded that [D.S.] received no love and attention from a man. He decided to ‘give her self-esteem’ and ‘give her self-worth.’”
The appella

nt and D.S. began

to talk more regarding D.S.’s per sonal feelings, and she “would give [the appellant] hugs.” Th e appellan t conceded that the relationship made him “feel good.” He described himself as having a flirtatious nature but stated that, when his flirtations became unwanted, he alway s ceased.-5- The relationship evolved to a point where the convers ations tur

ned to sexual matt

ers. The appellant revealed

to Dr. L yon s that he a

nd D.S. en gage d in private conversations, using codes to describ e explicit s exual act s. Accord ing to the appella nt, D.S. “kissed him and they rubbe d each other’s buttocks.” Additionally, on a Marc h field trip, the two spent a full day tog ether. When they returned, the appellant embraced D.S. and kissed he r.
The charged offense occurr ed when, accord

ing to the a

ppellant , D.S. offered to allow the appellant to look at her thong underwear. Accord ing to Dr. L

yons, the a

ppellant “insists he

only
ran his finger down [the strap of the thong] two inches and only felt the material. He claim s he did nottouch D.S.’s vagina, though he was ‘close.’” Despite the appellant’s claims that he knew he had gone too far, he also a

cknowle dged that

he and D. S. continued to conta ct each other by e -mail throughout the summer.

Dr. Lyons notes that

the appellant expresses sorrow for causing “ any trauma,” but the appellant claims to be ignorant of

“what trauma might have occurred.” Dr . Lyons further concludes that the appella

nt is unable to empathize with D.S., continuing to maintain that he was attempting to help he r. He pos its that the

appella nt was “g rooming” the victim

and conc ludes: In the short

term, a mo dificati on of [the appella nt’ s] c urrently depletedself-esteem and

his regaining some conf

idence a re major , if circumscribed, g oa ls which might best be achieved by focused cognitive and in terpersonal a pproach es in a gr oup settin g, partic

ularly
co mposed of other

persons r

equired to enter into such t

h erapy
. Unfortunately, this subject is u nlikely to retain motivation. The precipitant

for his treatment is situational rather than internal, and

he is liable to be convinced that he could work things out best on hi s own. This can lead only to backsliding and recurrence of th e behavior.
Thus, it is clear that the forty-two-year-old appella nt abused a position of trust by forming an inappropriate student-teacher re lationship wi th D.S., which re lationship ultimately culminated in the instant offense. We find it particularly important to n ote that the appellant’s behavior did not consist of a single, spontaneous bad act, but progressed over a period of time. Our courts have often noted theoffensi veness of an abuse of trust in such situations. See Lane , 3 S.W.3d at 462; State v. Victor D. Neuenschwander , No. M2 000-01334-CCA-R3-CD, 2001 Tenn. Cr im. App. LEXI S 335, at ** 11-12 (N ashville, May 8, 200 1); State v. Mark Steven Marlowe , No. E1998-0087 3

- CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 514, at **17-18 (Knoxville, June 30, 2000), perm. to appeal denied , (Tenn. 2001).

Because of the nature of t

he offense, i t is important to note that the abuse of the position of trust is not the sole factor supporting the denial of alternative sentencing. This court ha s also previously obs erved th at

[t]he issue in this case is the Appellant’s entitlement to an alternative sentence. The p otenti al for the rehabilitation of a defendant is one-6- factor which must be considered by the trial court in determining the sentencing alternative. Also to be considered is whether the offender is likely to reoff

e nd. The risk assessment report speaks to both of these issu es. Statev. Martin

Charles Jones , No. E1999-01296-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 356, at *6 (Knoxville, May 7, 2001), perm. to appeal denied , (Tenn. 2001) (citations omitted). Dr. Lyons ’ observations concerning the appellant’s lack of sympathy for the victim, his failure to perceive the harm he caused , and the ri sk of repetition of this behavior all militate against the appellant’s rehabilitative potent ial. Cf. State v. Mark Logan , No. 01C01 -9707-CC- 00261, 199 8 Tenn. Cr im. App. LEXI S 967, at *9(Nashville, Septe mber 15, 1 998); State v. Roger Lee Fleenor , No. 03C01- 9611-CR-00400, 1997 Tenn. Crim. App. LEXIS 1019, at *10 (Knoxville, October 9, 1997).

We also note that the trial court denied the a pp ellant full probation because of the potential deterrent effect of the appe llant’s incarceration. I

n Hoo per , 29 S .W.3d at 10-12, our supreme court outlined factors which are instructivein determining whether deterrenc e may support a denial of full probation:

1) Whether other incidents of the cha rged off ense ar e incre asingly present in the community, jurisdiction, or in the state as a whole.

. . . . 2) Whether the defendant’s cri me was the r esult of in

tentiona l, knowing, or

reckless conduct or was otherwise motivated by a desire to profit or gain from the criminal behavior.

. . . . 3) Whether t

h e defendant’s crime and conviction have r eceived substa ntial publicity beyond that normally expected in the typical
case.

. . . . 4) Whether the defendant was a me mber of a criminal enterprise, or substantia lly encouraged or assisted others in achieving the cr iminal objective.

. . . . 5) Whether the defendant

has previously engaged in criminal conduct of the same type as the offense in question, irrespective of w hether such con duct res ulted in pr evious ar rests or c onviction s.

. . . . Additional facts may be considered by the sentencing court, provided that (1) the sentencing court states these additional factors on the record with s peci ficity, and (2) the presence of these a dditional factors is supported by at least some proof. Taking the guidelines of Hooper into consideration during our review of the rec ord,
we conclude that there was proof adduce d at the sentencing hearing to indica te that confini n g the appellant would have a deterrent effect on “othe rs similarl y situated and likely to commit similar-7-

crimes.” Id. at 10. In his brief, the appellant c o ncedes that his conduct in the instant offense was intentional, satisfying the second factor. Id. at 11. The State also

argues t hat the a ppellant ’s case “rece ived subst

antial pu blicity.”Specific ally, the State con tends tha t the reference to a newspape r article [ in the v ictim impact statement of the victim’s mother] clearly shows that this [appellant’s] crime and conviction were kn own in the commu n ity as well as in the d iscrete community of the high school that the victim attended.

. . . . [Appella nt’s] argument that the trial court’s failure to make a finding
on the rec ord that h

is “peer s knew of

the alleg ations or

would like

ly be aware of anysentence imposed” is disingenuous. Not only does the record s how th at the charges against [appellant] wer e published in a newspaper, butalso the victim stated that she was forced to move to another high school to avoid this scandal and de scribed the fear that continued to haunt her in the wake of the abuse. In D.S .’s victim

impact sta

tement, sh

e explains that “I

had to go to

another school and start m y school life over again. I

had to leave a school in which I had attended for four years.” Additionally,
we note that the v ictim impac t statement of D.S.’s stepmother mentions, “[W]hen the television
news carrie d the stor

y and I sa w that man

for the f irst time, all I could do was weep.” Moreover, Dr. Lyons, D.S.’s mothe r, and D.S.’s stepmother all mention reading the appellant’s comments in a newspaper.
We acknowl edge tha t, in Hooper , 29 S.W.3d at 11, our supreme court stressed “that in this age of

instant access to virtually all types of information, something more than a newspaper article or television rep ort is nec essary t o fulfill t his factor [regarding substantial publicity].” However, “[c]riminal acts by a professional in his or her official capacity . . . need not be publicized statewide before

deterr ence ma y be cons idered a s a fact or. In mos t cases, substantia l publicity within the defendant’s professional community

would probably suffice to meet this factor.” Id. The record indicates that, as a result of this offense, the appellant has re signed from his po sition a s a te acher at Carter High School and D.S. has transferred schools. The r ecord does not specifical l y reflect that the reasons fo r the resign ation and the transfer were publicized specifically within the appellant’s “profe ssional c ommunity.”Neverth ele s s, we conclude tha

t the tria l court c orrect

ly considered deterrence in denying the a ppellant probation. Although the appellant demonstrated that he has support from family and friends and he has been a productive member of society, we c onclude that he has failed to meet his burden of establishing his suitability for full probation. See State v. D on William s , No . 03C01- 9303-CR00072, 1994 Tenn. Crim. App. LEXIS 480, at *14 (Knoxville, August 3, 1994). Additionally, we find sufficient proof in the record to uphold the trial court’s denial of alternative sentencing. As we observed in Fletcher , 805 S.W.2d at 789,

[i[f appellate review reflects that the trial co urt, by following the statutory sentenc ing proc edure, imposed a l a w ful sentence, after having given due consideration and proper weight to the factors and principles which are relevant to sentencing unde r the Act, and that the trial court's findi ngs of fac t upon which the sentence is based are-8- adequa tely su pported in the record, then we may not disturb the sentence even if we would have pre ferred a different result.
III. Conclusion Finding no reversible error, we affirm the judgment of the trial c ourt.

___________________________________ NORMA McGEE OGLE, JUDGE