        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               November 13, 2013 Session

            STATE OF TENNESSEE v. DANIEL CLARKE DOYLE

                   Appeal from the Circuit Court for Carroll County
                      No. 12CR77      Donald E. Parish, Judge


               No. W2012-02745-CCA-R3-CD - Filed January 17, 2014


The defendant, Daniel Clarke Doyle, pled guilty to statutory rape, a Class E felony, in the
Carroll County Circuit Court and was sentenced to one year and six months in the county jail,
suspended to supervised probation upon serving eighteen days. On appeal, he challenges the
trial court’s imposition of a sentence of split confinement instead of a grant of judicial
diversion or full probation. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

C. Mark Donahoe, Jackson, Tennessee, for the appellant, Daniel Clarke Doyle.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Hansel
J. McCadams, District Attorney General; and R. Adam Jowers, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       The twenty-three-year-old defendant, a coach and teacher at Huntingdon High School,
was indicted for statutory rape by an authority figure and pled guilty to the lesser offense of
statutory rape, as a result of his sexual encounter with a sixteen-year-old student.

       The presentence report included the defendant’s statement concerning the events:

              In October, I saw [the victim] at a Brantley Gilbert concert. She was
       with a couple of friends and I was with a friend of mine. Not long after that,
       she told me that she went through one of my basketball player’s phones to get
       my number and began texting me. She started finding ways to come by my
       classroom and want to talk. We texted each other some and it became
       flirtatious. She drove to my house on the 30th of November and while she was
       there, oral sex occurred. Immediately, I felt like I had done the most stupid
       thing of my life, and was overcome with remorse. She continued texting me
       but I realized how inappropriate this was and asked her to stop contacting me.

       The presentence report also contained the following impact statement from the
victim’s father:

              [The victim] - being a vibrant - fun loving excellent student became
       sullen and quiet - coming home from school - going to bed and crying every
       day for months. She was belittled and called names in front of her peers and
       taunted by them constantly - at school and work. She begged to go to a
       different school for her senior year. She is an honest straight forward person
       looking forward to college and possibly a career in criminal justice. She
       should . . . not have been subjected to solicitation by a person who was her
       superior and one she should have been able to trust. There was even a
       Facebook page “Support [the defendant]” that devistated [sic] her and [her]
       family. Some adults blamed her. She was grounded at home - only allowed
       to go to school and work with no contact even with her friends which to a
       teenager is like a life sentence. The whole family has been adversely affected.
       [The defendant] took advantage of a naive 16 year old girl.

       In addition, the defendant’s psychosexual risk assessment, the victim’s handwritten
statement and victim impact statement, and the victim’s mother’s victim impact statement
were added to the presentence report but placed under seal upon the defendant’s request at
sentencing. Seventy-four letters in support of the defendant were admitted as exhibits at the
sentencing hearing.

       At the sentencing hearing, the defendant testified that he was presently twenty-four
years old and had been a Spanish teacher and assistant basketball coach at Huntingdon High
School where the victim was a student. However, the victim was not a student in any of his
classes. The defendant stated that the victim obtained his phone number from one of the
players on the basketball team and sent him a text message. He acknowledged that he
responded to her message and that it was wrong for him to do so. He admitted that it was
wrong for him to have engaged in a sexual act with the victim and that he was in a position
to and should have stopped it.

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        The defendant testified that he would abide by any conditions of probation imposed
by the trial court and that he had obtained employment with Hasting Oil Company in
Waynesboro. Since his arrest, he had been living with his parents. The defendant expressed
his apology to the victim and her family, as well as to his family and other supporters for
“let[ting] them all down.”

       On cross-examination, the defendant acknowledged that he had seen the victim at a
concert, but he could not recall whether that was before or after she sent him a text message.
The defendant stated that he and the victim sent each other text messages about “a couple a
day” and that the messages became sexual in nature. He said that the victim sent him one or
two photographs of herself, but he did not request her to do so. A copy of the text messages
sent by the defendant to the victim on November 30, 2011, was introduced as an exhibit at
the hearing. He admitted that he did not advise school officials that he and the victim were
communicating via text messages, which was a mistake. After his sexual encounter with the
victim, he told her that they needed to stop communicating because he was “overcome with
remorse and guilt.”

        The defendant testified that he was aware that the victim worked at Sonic but denied
going there for the express purpose of seeing her. He elaborated that “she would inform me
of her hours, and if I happened to get thirsty at that time and wanted to go get something to
drink, . . . there were occasions where that happened.” However, he said that he “never just
pulled up . . . just to talk or to chat or anything of that nature.”

       On redirect examination, the defendant stated that he had no ability to affect the
victim’s grades at school. He also stated that the exhibit of his text messages was one-sided
and did not reflect the messages sent by the victim.

       Glen Hayes, the retired Director of Athletics at Bethel University, testified that he
knew the defendant when he was a student-athlete at Bethel and noted that the defendant was
selected as an Academic All-American and received a prestigious academic award. Hayes
thought the defendant was “an outstanding young man in every aspect” and that he had
always represented himself, his family, the university, and the basketball team “in the very
highest way.” Hayes had no question whether the defendant would abide by all conditions
of probation that the court placed on him, and Hayes would not hesitate in reporting the
defendant to the authorities if he violated a condition. Hayes said that, even though he did
not condone the defendant’s actions, it did not change his opinion of the defendant. Hayes
said that he would not feel uncomfortable leaving the defendant in charge of his home or
anything from the university or being around any of his family members.

       Ginger Boggess testified that she had known the defendant and his family for fifteen

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years. She said she would not hesitate having the defendant around her children, ages eleven
years, six years, and eighteen months, nor would she hesitate leaving her children in the
defendant’s care. She believed that the defendant would “do anything in his power to
comply” with any conditions of probation imposed by the court, and she would report him
if he failed to comply. She said that the defendant’s actions did not change her opinion of
him as being “trustworthy and respectful.”

        David Byrd, the principal at Wayne County High School in Waynesboro, Tennessee,
testified that he was well-acquainted with the defendant and his family. Byrd elaborated that
their families vacationed together, the defendant played basketball with Byrd’s son, and he
had the defendant in his class. Byrd said that the defendant was “a model student” in high
school and was loved and respected by his teachers and peers. Although he did not condone
the defendant’s conduct, Byrd was confident the defendant had learned his lesson and would
never engage in such behavior again. He said that, if the defendant was able to teach, he
would “hire him in a minute.”

        Charles Hasting, the owner of Hasting Oil Company and the defendant’s employer,
testified that the defendant was “very gifted” and could do anything he wanted to do in the
future. He had no reason to doubt the defendant and “would trust him in any type of work
that we would have him do.” If the defendant was placed on probation, the defendant could
continue to work for him.

        Leo Doyle, the defendant’s father, testified that he had been the defendant’s coach,
pastor, and best friend. He said that the defendant, an only child, had been a great support
to their family. Doyle agreed that the defendant made “an incredible mistake” and was
“crushed emotionally” about what he had done. He recalled that the defendant was ashamed
to go out in public for months and was very remorseful. Doyle said that the defendant could
continue to live with him and his wife during the pendency of a probationary sentence.
Doyle said he would report the defendant if the defendant violated his probation.

       Defense counsel asked the court to take notice of the large number of supporters in
the courtroom rather than calling any additional witnesses.

        After the conclusion of the testimony, the court denied the defendant’s request for
judicial diversion or full probation and sentenced the defendant to one year and six months
in the county jail, suspended to supervised probation upon serving eighteen days.

                                        ANALYSIS

       The defendant argues that the trial court abused its discretion in denying his request

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for judicial diversion or full probation.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2010).

       The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our supreme
court clarified that the “abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

        Under the revised Tennessee sentencing statutes, a defendant is no longer presumed
to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347

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(Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing
guidelines provide that a defendant “who is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant is
not, however, automatically entitled to probation as a matter of law. The burden is upon the
defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b); State v.
Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must demonstrate that
probation will ‘subserve the ends of justice and the best interest of both the public and the
defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State
v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding
the offense, the defendant’s criminal record, the defendant’s social history and present
condition, the need for deterrence, and the best interest of the defendant and the public.
Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly
depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997); Bingham, 910 S.W.2d at 456.

      In State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000), our supreme court outlined a
non-exhaustive list of factors for determining whether a need for deterrence is present and
whether incarceration is “particularly suited” to achieve that goal. These factors include:

       (1) Whether other incidents of the charged offense are increasingly present in
       the community, jurisdiction, or in the state as a whole;

       (2) Whether the defendant’s crime was the result of intentional, knowing, or
       reckless conduct or was otherwise motivated by a desire to profit or gain from
       the criminal behavior;

       (3) Whether the defendant’s crime and conviction have received substantial
       publicity beyond that normally expected in the typical case;

       (4) Whether the defendant was a member of a criminal enterprise, or

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       substantially encouraged or assisted others in achieving the criminal objective;
       and

       (5) whether the defendant has previously engaged in criminal conduct of the
       same type as the offense in question, irrespective of whether such conduct
       resulted in previous arrests or convictions.

Id. at 10-12.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

       (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.

Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for rehabilitation
or lack thereof should be examined when determining whether an alternative sentence is
appropriate. Id. § 40-35-103(5).

        Moreover, following a determination of guilt by plea or by trial, a trial court may, in
its discretion, defer further proceedings and place a qualified defendant on probation without
entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant
is one who is found guilty or pleads guilty or nolo contendere to the offense for which
deferral of further proceedings is sought, is not seeking deferral of further proceedings for
a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a Class A or Class
B felony, and who has not been previously convicted of a felony or a Class A misdemeanor.
Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully completes the period of probation,
the trial court is required to dismiss the proceedings against him, and the defendant may have
the records of the proceedings expunged. Id. § 40-35-313(a)(2), (b).

      The decision to grant or deny a qualified defendant judicial diversion lies within the
sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State

                                              -7-
v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by
Hooper, 29 S.W.3d at 9. As such, it will not be disturbed on appeal absent an abuse of
discretion. Electroplating, 990 S.W.2d at 229; Cutshaw, 967 S.W.2d at 344; Bonestel, 871
S.W.2d at 168. To constitute an abuse of discretion, the record must be devoid of any
substantial evidence in support of the trial court’s decision. Cutshaw, 967 S.W.2d at 344;
Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992).

        In determining whether to grant diversion, the trial court must consider all of 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 accused’s
physical and mental health, (f) the deterrence value to the accused as well as others, and (g)
whether judicial diversion will serve the interests of the public as well as the accused.
Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial court should not
deny judicial diversion without explaining the factors in support of its denial and how those
factors outweigh other factors in favor of diversion. Id. Because “judicial diversion is a
form of probation, see Tenn. Code Ann. § 40-35-313(a)(1)(A)[,] . . . the trial court’s findings
regarding the defendant’s suitability for full probation . . . apply equally to its decision
regarding the defendant’s suitability for judicial diversion.” State v. Neil Thompson, No.
W2008-00311-CCA-R3-CD, 2009 WL 1034519, at *13 (Tenn. Crim. App. Apr. 17, 2009)
(citing State v. Vivian Braxton, No. W2004-02506-CCA-R3-CD, 2005 WL 3059435, at *9
n.4 (Tenn. Crim. App. Nov. 10, 2005), perm. app. denied (Tenn. Mar. 20, 2006)).

       With conflicting results, panels of this court in State v. Kiara Tashawn King, No.
M2012-00236-CCA-R3-CD, 2013 WL 793588, at *6-7 (Tenn. Crim. App. Mar. 4, 2013),
perm. app. granted (Tenn. Aug. 14, 2013), and State v. Shanice L. Dycus, No. M2012-02297-
CCA-R3-CD, 2013 WL 5371957, at *6-7 (Tenn. Crim. App. Sept. 25, 2013), discussed the
impact of the supreme court decisions of Bise and Caudle on our review of a denial of
judicial diversion. The panel in King concluded that the holdings in Bise and Caudle are
applicable to diversion reviews by this court, while the panel in Dycus reached an opposite
conclusion. Regardless of whether King or Dycus is followed in this matter, the result is the
same.

        In its ruling, the trial court first noted that, in determining the appropriate sentence for
the defendant, it considered the evidence presented at the sentencing hearing, the presentence
report, the defendant’s psychosexual risk assessment, the statements submitted in support of
the defendant, the victim impact statements, the principles of sentencing, and the arguments
made by counsel regarding the various sentencing alternatives. The court also noted that it
took into consideration the nature and circumstances of the criminal conduct, the evidence
and information offered by the parties on mitigating and enhancement factors, as well as the

                                                -8-
defendant’s testimony.

        The court determined that the defendant’s sentence should be enhanced because the
offense involved a victim and was committed to gratify the defendant’s desire for pleasure
or excitement, see Tenn. Code Ann. § 40-35-114(7); and the defendant occupied a position
of trust as a public school teacher who the “community entrusts [with] . . . our most valued
asset, our children,” see id. § 40-35-114(14). With regard to the position of trust factor, the
court additionally noted that the defendant “used his professional status and the access to a
young female that it afforded to significantly facilitate this offense.” As a mitigating factor,
the court considered that the defendant’s criminal conduct neither caused nor threatened
serious bodily injury. See id. § 40-35-113(1).

       The court stated that it considered the defendant’s eligibility for various alternative
sentences, including probation and judicial diversion. The court noted that the defendant
bore the burden of demonstrating that he was entitled to judicial diversion.

         As factors weighing in favor of an alternative sentence, the court noted that the
defendant had a favorable social history and no prior criminal record and that “[h]is
character, as revealed by his previous actions, [was] good, with the exception of the present
offense.” The court observed that the defendant’s potential for rehabilitation was good and
that it appeared likely the defendant would abide by the terms of an alternative sentence. The
court found that the interests of society in being protected from future criminal conduct by
the defendant were not great. The court determined that the facts and circumstances
surrounding the offense were not particularly gross or heinous.

       The court stated that it read and considered the various letters of support submitted
on the defendant’s behalf and was “impressed with the sincerity of the opinions expressed
in each of those letters and by the witnesses who . . . testified as character witnesses[.]” The
court noted that the information relayed by the witnesses and letter-writers suggested that the
criminal conduct was out of character for the defendant.

        The court determined that the defendant’s abuse of a position of trust, the deterrent
effect to others similarly situated and media attention received, and the need to avoid
depreciating the offense were factors weighing against an alternative sentence. The court
specifically noted that the defendant “took improper advantage of his position as a
schoolteacher which led to a sexual relationship with a sixteen year old student. He failed
to act as a professional and failed to act as an adult in interacting with a child.” The court
also found that the physical and mental health of the defendant weighed against an alternative
sentence because “he is able to serve a sentence of confinement without danger to him[self].”



                                              -9-
       The court continued in its findings:

              It is also true that a period of confinement will provide a deterrent effect
       to others similarly situated.

              Unfortunately this sort of crime involving teachers is occurring too
       frequently across Tennessee. The offenses and the results of the court
       proceedings often receive media attention, as has been true, of course, in this
       instance. The Court affords great weight to this factor.

             The Court finds that a split sentence of confinement . . . is best suited
       to meet the purposes of our sentencing laws. A sentence of full probation
       would unduly depreciate the seriousness of this offense.

             It is important that teachers be reminded of the trust being placed in
       them by parents and by the public. And it’s important that everyone be
       reminded that decisions have consequences, sometimes life-altering
       consequences.

              The Court has weighed all the statutory factors regarding probation and
       judicial diversion in arriving at a sentence that will serve the interest of the
       public and [the defendant].

              The competing interests have been compared. [The defendant] has not
       carried the burden of proof to show his qualification for judicial diversion nor
       full probation because of the competing need for . . . deterrence, the
       circumstances of this offense, and because the interests of the public in
       assuring accountability by those in positions to mold and influence our
       students require otherwise.

              The sentence here to be imposed by the Court is deemed to be the least
       severe measure which is necessary to achieve the purposes for which the
       sentence is imposed.

       As detailed above, the trial court found several factors in favor of granting the
defendant’s request for full probation or judicial diversion but determined that those factors
were outweighed by the nature and circumstances of the offense, the need for deterrence, and
to avoid depreciating the offense. As to the nature and circumstances of the offense, the
court was obviously troubled by the defendant’s abuse of a position of public trust as a
teacher at the victim’s high school. The defendant counters that there was no proof that he

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was “at any time in a position of trust or supervisory power over [the victim]” or that “he
used his position of trust or power to accomplish the act[.]” However, the defendant
acknowledged at the sentencing hearing that as a teacher at the victim’s high school,
communicating with the victim via text messaging was inappropriate and that, as a teacher,
he was in a position to stop it and should have alerted school officials. Regardless of
whether the defendant was the victim’s teacher or coach, he was a teacher at the victim’s
school and there was an expectation that he refrain from having a sexual relationship with
a student.

        The defendant also asserts that there was no proof to support a sentence of split
confinement based on a need for deterrence. However, the proof shows that the defendant
knowingly engaged in an illicit relationship with the victim and also that the case generated
a lot of attention in the community “beyond that normally expected in the typical case.”
Hooper, 29 S.W.3d at 11. Apparently, a Facebook page was created about the case, and a
substantial number of people attended the sentencing hearing or submitted letters in support
of the defendant, which demonstrate the attention the crime received in the community.
While the fact the defendant received support in his community weighed in his favor, the
publicity surrounding the case reflects the deterrence value of his sentence. Accordingly, the
need to deter sexual contact between teachers and students was a sufficient basis to support
the trial court’s decision.

      After our review, we cannot conclude that the trial court abused its discretion in
denying judicial diversion and imposing a sentence of split confinement.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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