                                                                                         06/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 24, 2018

                STATE OF TENNESSEE v. THOMAS A. RYAN

                 Appeal from the Criminal Court for Sumner County
                     No. 701-2016       Dee David Gay, Judge
                     ___________________________________

                           No. M2017-01599-CCA-R3-CD
                       ___________________________________


After entering guilty pleas to four counts of aggravated statutory rape, Defendant,
Thomas A. Ryan, was sentenced to four years for each conviction. After a lengthy
sentencing hearing, the trial court ordered the sentences to be served consecutively, for a
total effective sentence of sixteen years and denied all forms of alternative sentencing.
Defendant appeals his sentence to this Court. Because we determine that the trial court
did not abuse its discretion in sentencing Defendant to an effective sentence of sixteen
years, we affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Lawren B. Lassiter (on appeal) and Walter H. Stubbs (at sentencing), Gallatin, Tennessee
for the appellant, Thomas A. Ryan.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
L. Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION


       In October of 2016, the Sumner County Grand Jury indicted Defendant for eight
counts of aggravated statutory rape based on his interactions with a fifteen-year-old
friend of his daughter. Defendant negotiated a plea agreement to plead guilty to four
counts of aggravated statutory rape. The State agreed to nolle prosequi the remaining
four counts of the indictment. A transcript from the plea acceptance hearing does not
appear in the record on appeal.

        After accepting the guilty plea, the trial court held a lengthy sentencing hearing in
order to determine the length and manner of service of the sentence. At the hearing,
Detective Scott Bilbrey of the Sumner County Sheriff’s Office explained the manner in
which the police came to question Defendant about his relationship with the victim.
Defendant’s wife called the dispatch and reported Defendant as suicidal. Defendant
voluntarily went to the police station where he denied being suicidal. At that time, police
had information about a possible relationship between the victim and Defendant. When
confronted with this information, Defendant denied that he had a relationship with the
victim, who was actually in another room at the police station. The victim informed
police that she had penile-vaginal intercourse with Defendant on seven or eight
occasions, all of which were preceded by digital penetration of her vagina. These
encounters occurred over approximately a ten-month period when the victim was fifteen
to sixteen years of age in various locations in Sumner County, including a local park and
Defendant’s daughter’s bed.

       The victim informed officers that in addition to having sexual intercourse with
Defendant, she performed fellatio on Defendant approximately ten times and Defendant
performed cunnilingus on her on one occasion. The victim also admitted to sending nude
images of herself to Defendant. The images, which constituted child pornography, were
found on Defendant’s computer. Defendant was not charged separately for any crime
related to the possession of child pornography.

       Defendant initially admitted to Detective Bilbrey that he was close friends with the
victim but denied any form of sexual relationship. Defendant met the victim because she
was a friend of his daughter. Defendant explained that he taught martial arts to young
girls and showed them various techniques for protecting themselves against attack.
When Defendant was confronted with the victim’s allegations, he admitted his
involvement, claiming that he loved the victim and that his failing marriage led him to
enter into this relationship with the victim. Detective Bilbrey explained that both
Defendant and the victim sincerely believed that they were in a legitimate relationship.

       The victim read a letter at the sentencing hearing. In the letter, the victim
acknowledged that she “looked up to” and loved Defendant and that Defendant taught her
to have confidence. The victim explained that the relationship forced her into counseling
for the last ten months. The victim had “guilt and pain” associated with the relationship
but felt “calm” because she was getting “closure.” She described the Defendant as a
“coward” who possessed “child pornography” and “got off to the trauma of another girl.”
The victim did not think that she was Defendant’s only victim.
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       The record contains victim impact forms from both the victim’s mother and father.
The forms indicate that Defendant’s actions had a substantial and lasting impact on the
victim’s family.

       Dr. Melinda Davenport conducted a psychosexual evaluation of Defendant prior to
the sentencing hearing. She acknowledged that Defendant had not been the subject of a
polygraph examination so she was relying solely on Defendant’s responses to questions
in making her recommendations and conclusions. Dr. Davenport initially determined that
Defendant was being honest but eventually concluded that he expressed some
characteristics of a martyr.

       Dr. Davenport recognized that Defendant did not have a significant criminal
history and no mental problems other than suffering from depression. In addition,
Defendant did not have a history of substance abuse or a traumatic childhood. She
explained that Defendant was a high school graduate with a two-year college degree.
Defendant maintained a stable work history, but at the time had resigned from a long-
time job presumably as a result of his arrest and subsequent guilty plea.

        Defendant admitted to Dr. Davenport that his actions were illegal but explained
that he genuinely loved the victim and did not want to hurt her. Dr. Davenport expressed
concern due to Defendant’s lack of understanding or acceptance that his relationship with
the victim was inappropriate. Dr. Davenport described these behaviors as cognitive
distortions. Dr. Davenport determined Defendant was at low risk to reoffend but that two
“flags” gave her concern. First, Defendant admitted that he utilized pornography,
searching things like “barely legal teens” and “jailbait.” Second, Dr. Davenport was
concerned by Defendant’s behavior, specifically the fact that he engaged in teaching
martial arts techniques to young girls. Dr. Davenport viewed this specific behavior as a
kind of “fishing” for potential victims who “would go for his temptations.” Dr.
Davenport also expressed concern with the allegation that Defendant had provided
alcohol to his daughter’s friends, by teaching them to make rum milkshakes. Dr.
Davenport noted that Defendant denied having an additional relationship with a second
victim but noted that if another victim were discovered, Defendant would be classified as
a high-risk offender. Dr. Davenport admitted that Defendant believed that he was
actually a victim and attempted to “externalize blame” on his poor marriage.

       Probation officer Susan Morrow prepared the pre-sentence report. Defendant
scored low on the risk and needs assessment, but Ms. Morrow deferred to the conclusions
of the psychosexual evaluation in order to evaluate whether Defendant was amendable to
treatment.

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        Defendant’s mother, Rita Adams, testified that Defendant had a normal childhood.
She expressed difficulty with the thought of Defendant living with her if he were granted
probation because of the sex offender registration requirements, like prohibiting the use
of the internet. Despite the limitations that having Defendant at her residence would
entail, Ms. Adams did not rule out the possibility of housing Defendant if he were
released to probation or some form of alternative sentence.

       Defendant testified that he met the victim in February of 2016. The victim was a
friend of his daughter. The victim learned that Defendant was interested in Renaissance
reenactment and made props and costumes as a hobby. The victim asked Defendant to
make her a sword for a role-playing game. Their relationship started because the victim
was interested in learning how Defendant made the props and costumes. At the time that
he became friends with the victim, Defendant described his relationship with his wife as
“numb.” He and the victim became closer, talking on the phone or texting each other on
a regular basis. Defendant testified that “one day [the victim] admitted she had feelings
for [him] and [he] had to admit the same.” By June of 2016, he and the victim were
having sexual intercourse.

        Defendant denied requesting nude photographs of the victim, claiming instead that
she sent them on her own. Defendant denied sending the victim pictures of himself.
Defendant explained that he was trained in multiple forms of martial arts. Defendant
taught defense techniques to his daughter and her friends on a couple of occasions so that
his “daughters [could] grow up to be strong, confident, able to defend themselves.”
Defendant denied being “on the prowl” and using self-defense training to further
facilitate getting close to young girls. Defendant claimed that none of the girls ever
complained that the training was inappropriate.

       Defendant admitted that he made rum milkshakes, his favorite, and that he let his
daughter have one when she turned eighteen. Defendant explained that his daughter’s
friends may have had part of a rum milkshake “once or twice.”

        Defendant explained that his marriage was not good and that his biggest concern
after getting arrested was the fact that he committed adultery. He admitted, however, that
he had searched for pornography for nearly ten years prior to the current offenses, using
search terms like “teen doggie style” and “jailbait.” Defendant explained that he had a
“relatively normal porn habit.” Defendant admitted that his relationship with the victim
was not normal but denied any manipulation of the victim. When asked what kind of
sentence he would like a defendant to have if the same thing had been done to his
daughter, Defendant initially refused to answer. He eventually explained that he would
have to “look at the situation.” Defendant confirmed that he and the victim had sex

                                           -4-
approximately the number of times alleged by the victim. He also admitted that he
smoked marijuana approximately once a year.

        At the conclusion of the hearing, the trial court considered the purposes and
principles of the sentencing act. The trial court determined that enhancement factor (7)
applied, that the offense involved a victim and was committed to gratify the Defendant’s
desire for pleasure or excitement. See T.C.A. § 40-35-114(7). The trial court commented
that the application of this enhancement factor was “verified in the psychosexual report.”
The trial court also determined that Defendant abused a position of private trust, applying
enhancement factor (14). See T.C.A. § 40-35-114(14). The only mitigating factor
considered by the trial court was the recognition that Defendant had no prior record. The
trial court also looked at whether the imposition of a sentence was justly deserved in
relation to the seriousness of the offense. The trial court commented that a “sexual
relationship with a forty-five-year-old and a fifteen-year-old” could not be “overlooked”
because it was “serious.” The trial court stated that the law was “for the protection of
children and the good of society.” The trial court discredited Defendant’s argument that
he was in “love” with the victim, calling it “baloney.” The trial court told Defendant he
could have exercised “control” and “walked away.” The trial court also stated that it
considered what an “appropriate” punishment would be for eight instances of digital
penetration, eight instances of intercourse, and one instance of cunnilingus in order to
prevent crime and to promote respect for the law. The trial court looked at, among other
things, Defendant’s potential or lack of potential for rehabilitation, noting that he was “on
the prowl” and had “cognitive distortions,” such as poor emotional regulation and self-
management, poor social skills and problem solving, and a tendency to externalize blame
and make excuses. The trial court concluded that a four-year sentence on each of the four
counts was “the only sentence appropriate.” The trial court determined that Defendant’s
actions were “wrong” and “if we don’t take it seriously as a society and as looking at
punishment, we’re going down the tubes.” The trial court found “that confinement [wa]s
necessary to avoid depreciating the seriousness of the offense and to provide an effective
deterrence to others likely to commit similar crimes.” The trial court ordered the
sentences to run consecutively on the basis that Defendant was “convicted of two or more
statutory offenses involving sexual abuse of a minor, with consideration of the
aggravating circumstances arising from the relationship between the Defendant and the
victim, the timespan of Defendant’s undetected sexual activity, the nature and scope of
the sexual acts, and the extent of the residual, physical, and mental damage to the
victim.” The trial court determined that the victim came to Defendant because of the
relationship she had with Defendant’s daughter and their shared interested in Renaissance
reenactment, a “relationship of trust.” Defendant took the victim “to the dark side”
during a two to three month period of time during which there were at least eight acts of
intercourse, eight acts of digital penetration, eight acts of fellatio, and one act of
cunnilingus for a total of twenty-five instances of rape. The trial court noted that if the
                                            -5-
victim were only a few years younger Defendant would be charged with rape of a child
and be subject to a sentence of twenty-five years on each count. The trial court
commented about the residual effect on the victim that she was going to have to “deal
[with Defendant’s actions] for the rest of her life” and the effect on the victim’s whole
family. The trial court determined that the sentences would be served consecutively and
in incarceration.

        Defendant filed a timely notice of appeal.

                                               Analysis

       On appeal, Defendant insists that the trial court erred by sentencing him to the
maximum sentence in the range on each offense and erred by ordering the sentences to
run consecutively for a total effective sentence of sixteen years.1 Additionally, Defendant
argues that the trial court should have granted some form of alternative sentencing. The
State counters that Defendant has waived any challenge to his sentence by failing to
provide a transcript of the guilty plea hearing as part of the appellate record. Despite
Defendant’s deficiencies in preparing the record for appeal, the State contends that
Defendant was properly sentenced by the trial court.

        When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). The same standard of review applies to a trial court’s decision
regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); see also State v. King, 432 S.W.3d 316, 325 (Tenn. 2014)
(applying the same standard to judicial diversion). This Court will uphold the trial
court’s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different
result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the
sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       Tennessee Code Annotated section 40-35-102(3)(C) provides that “[p]unishment
shall be imposed to prevent crime and promote respect for the law by . . . [e]ncouraging
        1
           Defendant will be automatically and statutorily eligible for parole after reaching his release
eligibility date (30% of sixteen years), less sentencing credits earned and retained by Defendant. See
T.C.A. § 40-35-501(a)(2), (c) and (m).
                                                   -6-
effective rehabilitation of those defendants, where reasonably feasible, by promoting the
use of alternative sentencing and correctional programs that elicit voluntary cooperation
of defendants[.]” Tennessee Code Annotated section 40-35-104(c)(9) authorizes a
“sentence to a community based alternative to incarceration . . . .” Additionally, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed,”
and “[t]he length of a term of probation may reflect the length of a treatment or
rehabilitation program in which participation is a condition of the sentence[.]” T.C.A. §
40-35-103(5). On the other hand, 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[.]

T.C.A. § 40-35-103(1). Moreover, the sentence imposed “should be no greater than that
deserved for the offense committed” and also “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), (4).

       A defendant is eligible for probation if the sentence imposed is ten years or less.
T.C.A. § 40-35-303(a). Although “probation shall be automatically considered by the
court as a sentencing alternative for eligible defendants,” the defendant bears the burden
of “establishing suitability” for probation. T.C.A. § 40-35-303(b). “This burden includes
demonstrating that probation will ‘subserve the ends of justice and the best interest of
both the public and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A defendant who is
sentenced as an especially mitigated or standard offender and who has committed a Class
C, D, or E felony should be “considered as a favorable candidate for alternative
sentencing options” if certain conditions are met. T.C.A. § 40-35-102(5), (6)(A). The
guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-102(6)(D).

       As the State’s brief aptly notes, the record does not include a transcript of the
guilty plea hearing in this case. When a record does not include a transcript of the guilty
plea hearing, this Court should determine “on a case-by-case basis whether the record is
                                            -7-
sufficient for a meaningful review under the standard adopted in Bise.” Caudle, 388
S.W.3d at 279. The trial court herein held a lengthy sentencing hearing at which the trial
court heard testimony from both Defendant and the victim along with several other
witnesses. Despite the absence of the transcript of the plea hearing, we deem the record
herein sufficient to review Defendant’s sentence.

        In this case, Defendant was convicted of four Class D felonies and was not
convicted of any of the offenses listed in the statute rendering him ineligible for an
alternative sentence. In other words, Defendant was considered a favorable candidate for
alternative sentencing. Defendant argues that the trial court improperly denied an
alternative sentence by sentencing him without “consideration of the [sentencing] statute .
. . fueled by raw emotion and rough judgment.” The trial court determined that
incarceration was in the best interest of Defendant in order to avoid depreciating the
seriousness of the offense and to provide an effective deterrent to others. The trial court
determined, and the record supported the finding that Defendant “groomed” the victim,
inappropriately believed that he was “in love” with the victim, and took advantage of the
victim’s trust by engaging in various sexual acts with the victim while she was fifteen
years of age and he was over forty. The trial court did not abuse its discretion in denying
an alternative sentence and in ordering Defendant to serve his sentence of sixteen years in
confinement. We recognize that this case was emotionally charged. In addition to the
testimony about the sheer number of instances of aggravated statutory rape, the victim
testified that she was emotionally traumatized and forever affected by Defendant’s
actions. The victim was attending counseling at the time of the sentencing hearing. It
was also evident from the victim impact forms completed by the victim’s father and
mother that crimes herein had a substantial impact on the victim’s family. Defendant has
failed to establish an abuse of discretion and is, therefore, not entitled to relief.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.



                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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