         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
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




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