State of Tennessee v. Douglas Mac Richmond

09/22/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 9, 2022 Session
STATE OF TENNESSEE v. DOUGLAS MAC RICHMOND
Appeal from the Criminal Court for Sumner County
No. 400-2019 Dee David Gay, Judge
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No. M2021-01025-CCA-R3-CD
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The Defendant, Douglas Mac Richmond, pled guilty in the Sumner County Criminal Court
to nine counts of sexual exploitation of a minor by electronic means, a Class B felony.
Pursuant to the plea agreement, he received an effective sixteen-year sentence as a Range
I, standard offender with the trial court to determine the manner of service of the sentence.
After a sentencing hearing, the trial court ordered that he serve the sentence in confinement.
On appeal, the Defendant claims that he was denied due process at sentencing because the
trial court allowed unreliable hearsay testimony, “infused” the court’s religious beliefs into
the court’s sentencing decision, failed to consider required statistical information from the
Administrative Office of the Courts (“AOC”), and considered information outside the
Defendant’s actual criminal conduct. The Defendant also claims that we should review the
trial court’s sentencing decision de novo because the court did not follow the purposes and
principles of sentencing and that we should grant his request for full probation or split
confinement. Based on the oral arguments, the record, and the parties’ briefs, we conclude
that the Defendant has not shown a violation of due process by the trial court but that a de
novo review of the denial of alternative sentencing is warranted. Upon our de novo review,
we conclude that the trial court properly ordered that the Defendant serve his effective
sixteen-year sentence in confinement.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., AND JILL BARTEE AYERS, JJ., joined.
Ellison Berryhill (on appeal), David A. Doyle (on appeal and at sentencing), and Lawren
B. Lassiter and Randy P. Lucas (at plea hearing), Gallatin, Tennessee, for the appellant,
Douglas Mac Richmond.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Senior Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Jenni Smith and
Thomas Boone Dean, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTS
In April 2019, the Sumner County Grand Jury returned a nineteen-count indictment,
charging the Defendant in counts one through nine with sexual exploitation of a minor by
electronic means in violation of Tennessee Code Annotated section 39-13-529(a); in counts
ten through fifteen with sexual exploitation of a minor by electronic means in violation of
Tennessee Code Annotated section 39-13-529(b)(2); and in counts sixteen through
nineteen with sexual battery by an authority figure in violation of Tennessee Code
Annotated section 39-13-527. All of the counts involved the same female victim.
On May 21, 2021, the Defendant pled guilty to counts one through nine, sexual
exploitation of a minor by electronic means in violation of Tennessee Code Annotated
section 39-13-529(a).1 Pursuant to the plea agreement, he was to receive an eight-year
sentence for each conviction as a Range I, standard offender with counts one and two to be
served consecutively and the remaining counts to be served concurrently with count one
for a total effective sentence of sixteen years. The trial court was to determine the manner
of service of the sentence.
At the guilty plea hearing, the State gave the following factual account of the crimes:
In the fall of 2018, the victim was a fourteen-year-old student at Gallatin High School, and
the Defendant was her thirty-five-year-old teacher. The victim began sending text
messages to the Defendant, and they exchanged messages with their cellular telephones
about “things like football games and normal activities.” Within a week of starting to
exchange messages, the Defendant told the victim to download the Kik application so they
could communicate via Kik instead. The victim created a Kik account on October 20,
2018. The Defendant also had a Kik account and went by the name “‘DMAC the
Chemist.’” An investigator would have testified at trial that Kik was “a notorious text
message application used by sex offenders.”
1
Tennessee Code Annotated section 39-13-529(a) provides,
It is an offense for a person eighteen (18) years of age or older, by means of oral, written
or electronic communication, electronic mail or internet service, including webcam
communications, directly or through another, to intentionally command, hire, persuade,
induce or cause a minor to engage in simulated sexual activity that is patently offensive or
in sexual activity, where such simulated sexual activity or sexual activity is observed by
that person or by another.
-2-
The victim and the Defendant began exchanging messages on Kik. Although the
victim and the Defendant deleted most of the messages from their telephones, the Gallatin
Police Department (“GPD”) later was able to obtain many of the messages for the time
period of November 2, 2018, to February 5, 2019, which was the date of the Defendant’s
arrest. The messages showed that immediately after the victim downloaded the Kik
application, the Defendant began asking her for nude photographs of herself. The victim
was scared to send him nude photographs but began sending him “normal face shots and
clothed photographs.” The Defendant continued to ask the victim for nude photographs,
so the victim began sending him partially-nude photographs. Eventually, she began
sending him fully-nude photographs.
The Defendant coached the victim on how to take sexually explicit photographs and
asked for photographs almost daily. Toward the end of their relationship, the Defendant
often asked the victim to meet him in his classroom closet after school and during breaks
to engage in sexual activity. However, the victim always “‘chickened out’” and made
excuses as to why she could not meet him. The Defendant then would send messages to
the victim in which he told her that she “‘owed him,’” meaning that she owed him more
photographs because she would not meet him in the closet. The Defendant’s messages also
became “very sexual and graphic describing the sexual things he wanted to do to the victim
in his classroom closet,” and the victim had to ask the Defendant several times for
clarification about the meaning of certain sexual phrases. The Defendant sent at least nine
photographs of his fully erect penis to the victim, and some of those photographs were
taken inside his classroom. He also sent the victim a video of himself masturbating in what
appeared to be Gallatin High School’s training facility. The Defendant told the victim
numerous times that he could go to jail for his behavior and told her to delete their messages
and not to tell anyone about their contact. Ultimately, another student found out about the
relationship and disclosed it to the school administration, which resulted in the Defendant’s
arrest.
After the State’s recitation of the facts, the trial court accepted the Defendant’s
guilty pleas and scheduled a sentencing hearing to determine the manner of service of the
effective sixteen-year sentence. The trial court allowed the Defendant to remain on bond
pending sentencing but ordered that he not have any direct or indirect contact with the
victim, that he register as a sex offender, and that he undergo a psychosexual risk
assessment. The State dismissed the remaining charges.
The trial court held a sentencing hearing on July 30, 2021. At the outset of the
hearing, defense counsel recognized that the Defendant was not considered to be a
favorable candidate for alternative sentencing because the crimes were Class B felonies.
However, defense counsel asserted that “despite [the Defendant’s] three months of
atrociousness and the damage that he did to this child,” the trial court should suspend the
effective sixteen-year sentence to probation.
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Katie Hope2 testified for the State that in February 2019, she was an investigator
with the GPD. On February 5, she responded to a call at Gallatin High School regarding a
juvenile female student possibly involved in a relationship with a teacher. The teacher was
the Defendant, who was married and had a nine-month-old baby. Investigator Hope first
interviewed the female student who had reported the relationship. Investigator Hope then
interviewed the victim. The victim disclosed to Investigator Hope that she and the
Defendant had been “‘sexting’ for some time” and had exchanged nude photographs and
videos. Initially, the victim and the Defendant communicated via normal cellular telephone
text messages. However, “within a matter of days,” they began communicating via the Kik
application. Investigator Hope explained about Kik as follows:
Kik is known in the criminal realm as -- the company is not based in the
United States and therefore they do not honor our judicial process. So these
messages can be deleted, usually not recovered. It is known as an app where
child pornography, grooming of children, things like that is utilized as they
know it would be difficult to prosecute.
The Defendant had downloaded the Kik application in 2015. Investigator Hope took
possession of the victim’s telephone, but the victim had deleted their messages.
Investigator Hope testified that after she interviewed the victim, she interviewed the
Defendant. He denied knowing the victim but admitted sending text messages to other
students. He told Investigator Hope that his cellular telephone number was in his class
syllabus in case his students needed to contact him for help with their homework. The
Defendant also was the school baseball coach and had been in contact with student athletes.
Eventually, the Defendant admitted knowing the victim and told Investigator Hope that
“some students had made him aware that [the victim] had a crush on him.” Investigator
Hope asked the Defendant if he sent messages to the victim, and the Defendant “hinted that
maybe someone was impersonating him, maybe someone was out to get him, maybe some
of his social media had been hacked, things like that.”
Investigator Hope testified that the Defendant claimed he had “no idea” where his
cellular telephone was located. By the end of the interview, though, he disclosed the “likely
location” of his telephone. Someone retrieved the telephone and brought it to Investigator
Hope. At some point during the Defendant’s interview, he became “more truthful” about
his contact with the victim and admitted that he and the victim had exchanged messages
via Kik.
Investigator Hope testified that the Defendant was transported to the police
department and that he was placed in a room by himself. Investigator Hope allowed him
2
At the time of the sentencing hearing, the witness’s last name had changed to Kittrell. For
consistency and clarity, we will refer to her as Investigator Hope.
-4-
to telephone his wife, and their conversation was recorded. The Defendant told his wife
that he and the victim had been sending photographs to each other but that they did not
have a sexual relationship. He also told his wife that he was addicted to pornography and
that he had been watching pornography and masturbating to it every morning before
school.
Investigator Hope testified that although the victim had deleted the Kik messages
from her telephone, the GPD was able to recover most of the messages. Investigator Hope
said that the messages began as “very innocent from the victim’s end” and that the victim
“really had no sexual experience, knowledge.” The victim sent “Snapchat selfies with
bunny ears” to the Defendant and told him about some family issues she was having, but
the Defendant constantly asked her for nude photographs and did not show any concern
about her personal problems. The victim began sending him photographs of herself fully
clothed. The Defendant “push[ed]” her to “show more skin,” so her photographs
progressed “from fully clothed to bikini to then nude.” The Defendant also “coach[ed] her
on what positions to place herself in.” Investigator Hope acknowledged that the Defendant
told the victim to “lay down and open [her] vagina” and to bend over and spread her “butt
[cheeks].” The victim did not know what “oral sex” meant, so the Defendant had to explain
it to her. Investigator Hope said that the Defendant’s messages became “more vulgar” over
time and that “it was apparent that the victim was learning how to speak more sexually
suggestive and how to pose herself, and by the end of it she was just as much wrapped up
in it as he was.” The Defendant frequently reminded the victim to delete their messages,
and he repeatedly told her that he could go to prison.
Investigator Hope testified that the Defendant kept asking the victim to have sex
with him in his classroom closet. The victim “would somewhat seem like she was
interested” but always made an excuse at the last minute as to why she could not meet him.
Consequently, the Defendant would tell the victim that she “owed him more photos as
payback for leaving him hanging.” The Defendant began sending the victim photographs
of his erect penis covered by his boxer shorts but then began sending her photographs of
his erect penis exposed. Some of the photographs appeared to have been taken in the
Defendant’s classroom and at the school’s baseball facility. The Defendant also sent the
victim one video of himself masturbating “possibly in the baseball practice facility.”
Investigator Hope testified that she conducted a forensic interview with the victim
and that the victim “discussed some potential sexual batteries” that had occurred in the
Defendant’s class. Specifically, the victim told Investigator Hope that the Defendant
“would brush up against her, touch her in her thigh, grab her breasts.” He also grabbed her
buttocks one time. The Defendant later mentioned the touches in his messages to the
victim, so the police were able to “match up each of those incidents.”
On cross-examination, Investigator Hope testified that the female student who had
reported the relationship was “under the impression” that the victim and the Defendant
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“had had oral sex . . . and that they were sexting.” The victim had told the student that the
victim had engaged in fellatio with the Defendant. But when Investigator Hope
interviewed the victim, the victim was “adamant” that she and the Defendant did not
engage in oral sex. At that time, Investigator Hope did not know if the victim was telling
her the truth. However, Investigator Hope never found any evidence that the victim and
the Defendant engaged in oral sex or sexual intercourse. Additionally, the “thousands” of
Kik messages recovered from the victim’s telephone showed she was being truthful. On
redirect examination, Investigator Hope testified that although the victim and the
Defendant did not have sexual intercourse, “I believe they absolutely would have had sex
had [the victim] showed up in that closet.”
The victim, who was seventeen years old at the time of the sentencing hearing,
testified that the Defendant used to be her physical science teacher. He provided his
students with his cellular telephone number at the beginning of the school year, and he and
the victim began exchanging text messages in October 2018. At first, their messages were
“[j]ust regular, everyday conversations.” Three or four days later, though, the Defendant
asked the victim to move their conversations to the Kik application, and she did so. The
victim said that almost immediately, the Defendant’s demeanor changed. The victim knew
he wanted nude photographs of her, so she started sending him partially-nude photographs.
Eventually, she began sending him fully-nude photographs because she respected him and
“wanted to keep him happy.” The Defendant began sending photographs of his erect penis
to the victim, and he took some of the photographs in his classroom. He also sent her
photographs of himself masturbating and tried to get her to have sex with him in his
classroom closet, which had a locked door. The victim always made excuses as to why she
could not meet him in the closet, and the Defendant would tell her that she had to send him
photographs or videos of herself to “repay” him.
The victim acknowledged that she told another student that she and the Defendant
had oral sex. The victim testified that she and the Defendant never had oral sex and that
she lied to the student because the Defendant “was a very well-liked teacher. He was
everybody’s favorite, and I thought I was special, having what I thought was a relationship
with him.” When the school administration found out about the relationship, the victim
tried to delete all of their communications from her telephone because she “didn’t want to
be in trouble” and “didn’t want anything bad to happen to him.” The victim thought she
was in love the Defendant but later realized he had “manipulated” her and had “used” her.
The victim testified about incidents in which the Defendant touched her while she
was in his class. One time, the Defendant came up behind her, and she felt his erect penis
against her back. Another time, the victim was standing on a chair, and the Defendant put
his shoulder against her inner thigh. In another incident, the Defendant put his forearm
against the victim’s “butt” while she was sitting on a desk. In other incidents, the
Defendant “kind of just brushed his hand against [her] left breast” and “grabbed [her] butt.”
Some of the messages recovered from the victim’s telephone corresponded to the incidents.
-6-
The victim testified that after the messages were revealed, she “felt like it was all
[her] fault” and thought she had ruined the Defendant’s life. The victim said that she
became “very disliked around here,” that she was blamed and bullied, and that she could
no longer attend Gallatin High School. The victim tried traditional therapy but attended
only five sessions and began using horses as therapy. She said the Defendant should have
to serve his effective sixteen-year sentence in confinement. Upon being questioned by the
trial court, the victim said that her relationship with the Defendant caused her to become
afraid of men and that his ongoing case had been “exhausting and stressful.”
The victim’s mother testified that in February 2019, she learned about the messages
and photographs exchanged between the victim and the Defendant. The victim’s mother
was “immediately enraged” because she did not think she had to protect the victim from
the victim’s teachers. She knew the victim had a crush on the Defendant because “[a]ll the
girls did,” but she never thought anything like this would happen.
The victim’s mother testified that the victim had liver cancer and was very sick in
the eighth grade. The victim was excited about attending high school, played on the soccer
team, and was a “straight A student.” After the victim’s relationship with the Defendant
was revealed, the victim’s mother took the victim out of school for a few days. Other
students began talking about the victim and creating “memes” with photographs of the
victim and the Defendant. The victim also started being bullied. She “completely removed
herself from anything school-related or teenagers-her-age related,” and her grades fell to
“[b]arely making B’s and C’s.” The victim ended up attending “virtual” school. The
victim tried traditional therapy but found therapy with horses. The victim’s mother said
the Defendant should serve his effective sixteen-year sentence in prison.
On cross-examination, the victim’s mother testified that victim had an iPhone. The
victim’s mother did not monitor the victim’s use of the iPhone because the victim was a
good student and “didn’t give [her] reason to have to do that.” The victim’s mother did
not know anything about Kik. She said that the victim was “a tough girl” and
acknowledged that the victim had put the incident with the Defendant behind her.
Investigator Charles Cook of the GPD acknowledged that at the prosecutor’s
request, he conducted “some investigation” into this case. On May 10, 2021, Investigator
Cook spoke with S.F., who was a female student of the Defendant at a South Carolina high
school from 2011 to 2012. S.F. told Investigator Cook that the Defendant was “pursuing
her during school, saying things to her like my wife’s not around and I can see you.” The
Defendant told S.F. that he thought she was attractive, and he “tried to cause problems”
between her and her boyfriend. The Defendant also told S.F. that he “wanted to be with
her and would do whatever it’d take to do that.” S.F. told Investigator Cook that when she
did not do what the Defendant wanted, he became “more of a bully type and told her that
she was a pathetic piece of [sh*t] and that she was a loser.”
-7-
Investigator Cook testified that according to the Defendant’s employment records,
he taught at four different high schools in South Carolina and Georgia prior to teaching at
Gallatin High School. Investigator Cook spoke with the Defendant’s ex-wife, with whom
the Defendant had a daughter. The Defendant’s ex-wife told Investigator Cook that “a
couple of times they had to leave in a hurry” and that she did not know why. [She also told
Investigator Cook that the Defendant was unfaithful, and she “shared several letters of
apology from him, from everything to drinking to inappropriate types of relationships.”
Investigator Cook read aloud excerpts from a fifteen-page letter written by the Defendant’s
ex-wife. In the letter, she said that she had known the Defendant since middle school, that
they married in 2014, and that they divorced in 2020. She said that the Defendant “was
willing to violate a child for his own personal pleasure,” that their daughter was “in direct
danger,” and that the Defendant should never be allowed to be around children.
Investigator Cook testified that the Defendant had been living in Michigan since his
guilty pleas. Although the Defendant was required to register as a sex offender, he had not
registered in Tennessee or Michigan at the time of the sentencing hearing. Investigator
Cook thought the Defendant’s failure to register was a violation of the sex offender law.
Investigator Cook received information that the Defendant had met a woman “on a dating
app called Tinder.” Investigator Cook noted that as a condition of his bond, the Defendant
was not allowed to access the internet. Investigator Cook also received information that
the Defendant was dating or engaged to the woman and that the woman had two daughters
who were twelve and thirteen years old. The Defendant’s ankle monitor showed that he
spent “significant time” at the woman’s home and that he was with her when she
supposedly drove her daughters to their father’s home in Ohio. Another condition of the
Defendant’s bond was that he not have any contact with minors. Investigator Cook stated
that if the Defendant accessed the internet or was around the woman’s daughters, he
violated the conditions of his bond.
On cross-examination, Investigator Cook testified that he did not begin his
investigation of this case until May 2021. He acknowledged that he was “brought in to
chase down” witnesses and said that he was able to “call these people [to] see what they
had to say.” The Defendant’s ex-wife divorced him immediately after the charges were
brought against him and only maintained an amicable relationship with him for the sake of
their daughter. Investigator Cook said that he did not have any direct proof the Defendant
accessed the internet after the Defendant’s guilty pleas and that he had not spoken with the
Defendant.
Jason Fuller testified for the Defendant that he was from Brighton, Michigan, and
that he was the associate pastor at Brighton Nazarene Church. He said that he had known
the Defendant for two years and that they met when the Defendant began attending the
church during the Covid-19 pandemic. Mr. Fuller learned the Defendant had a barbeque
business, so Mr. Fuller “reached out” to see if the Defendant would partner with the church
to provide meals to frontline workers. Mr. Fuller and the Defendant began talking about
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Celebrate Recovery, which was a national, Christ-centered program at the church for
people with addictions. Mr. Fuller was starting a “discipleship group” in which he was
incorporating elements from Celebrate Recovery, and the Defendant joined the group.
Initially, Mr. Fuller was “cautious” and “cynical” of the Defendant. He researched the
Defendant on the internet and learned the Defendant’s story, and he met with the Defendant
weekly for about two years. At their first meeting, the Defendant was “upfront” about his
past and was “broken,” “scared,” and “looking for healing.”
Mr. Fuller testified that the Defendant met with the church’s senior pastor. The
Defendant was honest with the senior pastor, and Mr. Fuller and the senior pastor became
involved in the Defendant’s “barbecue ministry.” Mr. Fuller said that he did not know
anything about the Defendant at the time of the offenses but that he thought “[s]omething
happened to [the Defendant] two or three years ago when he was in jail, when he was at
rock bottom, when he was at the most impressible broken spot in his life.” Mr. Fuller
thought the Defendant had “an encounter with God.” He said that he thought the
Defendant’s behavior in this case was “terrible and disgusting” but that the Defendant had
earned his trust and respect and that he did not think the Defendant was the same person
the Defendant was two or three years ago. Mr. Fuller stated that the Defendant had found
a purpose and passion for the Defendant’s life, that the Defendant wanted to honor God,
and that he thought the Defendant’s heart had “genuinely been transformed.”
The Defendant gave a lengthy allocution. He apologized to the victim’s family and
said his life changed forever when he was “booked” into jail on February 5, 2019. At that
time, the Defendant did not have any direction, faith, or hope. The next day, a Gallatin
pastor visited him in jail. When the Defendant returned to his cell, he “dropped to [his]
knees” and told God that he wanted to “do [God’s] will for the rest of [his] life; nothing
else mattered.” The Defendant said that he gave his life to God and that he spent the next
ten months in jail “getting to know God on a deep, personal level while blessing others.”
The Defendant used his teaching skills to help inmates learn to read and obtain their GEDs.
When the Defendant was released from confinement, he started a deck-building company
because there were no jobs for convicted felons. He also started a homeless barbecue
ministry in downtown Detroit. During the Covid pandemic, the Defendant used his
ministry to feed 5,000 people.
Addressing the trial court directly, the Defendant said that he was “a man of God”
and that “I know there’s people in this room right now that think this is a mockery to talk
about this Lord and Savior that totally changed and revitalized who I am.” Defendant noted
that prior to moving to Tennessee, he taught special education students in Charleston, South
Carolina; worked with “inner city” students in Atlanta, Georgia; and coached students who
went on to have careers in the NBA, the NBA Europe, the NFL, and major league baseball.
The Defendant stated that he had to start his decking company because no one would hire
him and that he put “[e]very dime” he earned from his company into his homeless ministry.
Defendant asserted that justice already had been served in this case, noting that he could
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no longer coach; that he could no longer be around children, including his sister’s children;
that he could no longer see his daughter, even on bond; and that he would have to live with
the fact that he harmed a minor for the rest of his life. In closing, the Defendant stated that
he knew he had “done some awful things” to the victim and her family but requested that
the trial court consider his accomplishments and “what I’m about now.”
The State introduced into evidence the Defendant’s presentence report, his
psychosexual risk assessment, and the text messages and photographs recovered by the
police. In the presentence report, the Defendant stated that he earned a bachelor’s degree
in chemistry from Albion College in Michigan in 2006, that he played football and baseball
in college, and that he earned good grades. He said that he pursued a master’s degree in
educational psychology through the University of Alabama’s online master’s program but
that he had to withdraw from the program due to his arrest in this case. The Defendant
described his physical and mental health as “good” and said that he was participating in
Celebrate Recovery for his addiction to pornography. The Defendant stated that he began
consuming alcohol when he was twenty-one years old, that he consumed beer, and that his
alcohol use caused issues in his marriage. He also stated that his alcohol use contributed
to a one-month extramarital affair that occurred while he and his ex-wife were living in
Nashville and that he stopped drinking alcohol in July 2017. The Defendant said in the
report that he had a close relationship with his parents, that he was living with them in
Michigan, and that he was in very serious romantic relationship with a woman who also
resided in Michigan.
Regarding the Defendant’s employment history, the presentence report showed that
at the time of sentencing, he owned Mac Custom Build and Design, a construction business,
and Mac Daddy’s BBQ Ministry, a nonprofit corporation. The Defendant was a teacher at
Gallatin High School from August 2017 until he was fired in February 2019, and he worked
for two construction companies in 2020. Prior to teaching at Gallatin High School, the
Defendant was a public school teacher in Charleston, South Carolina, from August 2009
to August 2012; in Atlanta, Georgia, from August 2012 to May 2015; and in Nashville
from May 2015 to August 2017. The presentence report did not show any prior criminal
record for the Defendant.
The Defendant’s Strong-R assessment was attached to his presentence report and
classified his overall risk level as low. The assessment concluded that he had low needs
relevant to “Mental Health,” “Education,” “Alcohol/Drug Use,” “Attitudes/Behaviors,”
“Employment,” Aggression,” and “Friends” and that he had moderate needs relevant to
“Family” and “Residential.”
In June 2021, a licensed psychologist examined the Defendant for a psychosexual
risk assessment. According to the assessment, the Defendant told the examiner that he had
been married twice: first to his high school sweetheart and then to the mother of his
daughter. The Defendant said that he was unfaithful to his second wife but that he attended
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counseling and stopped consuming alcohol after he confessed the affair to her. The
examiner noted that although the Defendant claimed to have attended counseling for about
nine months, he could not remember the name of the counselor so that the examiner could
obtain the Defendant’s counseling records. The Defendant told the examiner that he
viewed pornography and used Kik to share “inappropriate images” with others during his
second marriage. The Defendant also began using chatrooms to obtain nude photographs
from females and would masturbate to the photographs.
In the section of the assessment for the Defendant’s version of the crimes, he stated
that he “pursued” the victim and that he wanted nude photographs of her “to get sexual
gratification.” Defendant suggested to the victim that they have “‘alone time’” in the back
room attached to his classroom. He said that by “alone time,” he meant “a blow job.”
However, he denied having any sexual contact with the victim. In the section for the
Defendant’s psychosexual history, he told the examiner that he photographed his penis and
sent the photographs to the victim and about forty adults. He stated he that received nude
photographs from less than forty women and that he thought the victim was the only
“underage” female to send him photographs. The Defendant said that he made a video of
himself masturbating and that he sent the video to the victim and to ten women.
The psychosexual risk assessment showed that the examiner administered the
Visual Assessment of Sexual Interest (“VASI”) to the Defendant. For that test, the
Defendant was shown collages of images that depicted both sexes in all five Tanner Scales
of sexual development, and his visual fixation responses were measured to identify the
presence or absence of sexual interest. During the test, the Defendant “demonstrated a
significant amount of time avoiding looking at images,” and the examiner noted that “his
attempts to avoid looking at images may have lowered his level of fixation or sexual
interest to socially unacceptable groups.” Although the Defendant reported having a high
sexual attraction to adult females, he “demonstrated significantly higher visual and
sexualized fixation to females and males 2 to 5 years old and females 6 to 12 years old than
his sexualized interest to adult females.” The examiner stated that the Defendant’s
responses were “associated with an abnormal fixation to female children” and that his “high
sexual interest in female children is a concern and should be addressed in treatment.” The
Defendant also “demonstrated below normal visual fixation responses to females 13 to 17
years-old,” and the examiner stated that his response to females in that age group should
be assessed further in treatment. The Defendant’s VASI results were “associated with a
Moderate-high level of risk associated with deviant interest” and “suggest[ed] an absence
of interest in adult females and higher interest in prepubescent females.”
The examiner used two tools to measure the Defendant’s risk to reoffend: the
STATIC-99R and the STABLE 2007. The Defendant’s score on the STATIC-99R placed
him in the average risk category, and his score on the STABLE 2007 placed him in the
moderate risk category. The examiner concluded that the Defendant’s risk to reoffend was
average. She recommended that he participate in sex-offender-specific treatment and
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stated that his average risk to reoffend suggested he could participate in an outpatient
community-based program. The examiner noted that the Defendant’s level of honesty and
cognitive and verbal skills were factors associated with a good prognosis.
At the conclusion of the proof, the trial court stated that it had considered the
evidence at the sentencing hearing; the presentence report; the principles of sentencing and
arguments as to sentencing alternatives; the nature and circumstances of the offenses;
enhancement and mitigating factors; the Defendant’s allocution; and the validated risk and
needs assessment in the Strong-R report. The trial court said that it also had considered
twenty-one letters of recommendation written on the Defendant’s behalf and delivered by
defense counsel to the trial court.3 The trial court said that the letters showed the Defendant
was “loved greatly” and “blessed” and that they showed he pursued a master’s degree, was
a very good student, had no criminal record, and had a good work history until he moved
to Gallatin. The trial court noted that after the Defendant was indicted in this case, he made
bond and was allowed to move to Michigan. He began attending Celebrate Recovery,
established a business and a ministry to feed the homeless, helped people, made friends,
and followed all of the rules and restrictions associated with his bond. The trial court stated
that the Defendant “[did] all the right things” in Michigan and that he was “very passionate”
in his allocution about what he accomplished there. However, the trial court took issue
with the Defendant’s claim in his allocution “about how much [he’d] suffered already.”
The trial court noted that according to the Defendant’s presentence report, he abused
alcohol, which contributed to his having a one-month affair while he and his second wife
were living in Nashville. The trial court also noted that the Defendant pursued and
“groomed” the fourteen-year-old victim. The trial court found that enhancement factors
(7), that the offense involved a victim and was committed to gratify the defendant’s desire
for pleasure or excitement, and (14), that the defendant abused a position of public or
private trust, applied to his convictions. See Tenn. Code Ann. § 40-35-114(7), (14). In
mitigation, the trial court addressed factor (13), the catchall provision, and noted that the
Defendant “has a good family,” did not have a criminal record, and “has taken steps to get
where he should.” Tenn. Code Ann. § 40-35-113(13). However, the trial court then stated,
“I don’t think that he needs to be rewarded for what he did.”
The trial court addressed the nature and circumstances of the offenses and whether
confinement was necessary to avoid depreciating the seriousness of the offenses. The trial
court stated that violating a child’s innocence was “among the greatest evils known to
man”; that “[t]hese crimes involved perversion, immorality, paganism”; and that the crimes
“were godless because your god was your sexual appetite and your weapon was the
internet.” The trial court said that it had reviewed the messages and photographs
exchanged between the victim and the Defendant and that the Defendant “repeatedly asked
3
Defense counsel did not introduce the letters into evidence as an exhibit, and they are not in the
appellate record.
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her to have sex with him in his classroom in the closet.” The trial court referred to the
Defendant as a “predator[]” and stated, “Had it not been for the grace of God and the
intervention of [another student], . . . [the crimes] would have been much worse.”
The trial court quoted some of the Defendant’s messages to the victim. The trial
court said that the messages and photographs “frankly [make] me sick” and that the victim
“look[ed] like she was being groomed to be a porn star.” The trial court noted that the
Defendant sent nine photographs of his exposed and erect penis to the victim and that he
took a majority of those photographs in Gallatin High School. The trial court recalled that
the Defendant also touched the victim in class, including one time when “he came up
behind her and she felt his erect penis against her back in class in front of others.”
The trial court said it was “concern[ed]” about the Defendant’s psychosexual risk
assessment and quoted extensively from his version of the offenses, his psychosexual
history, and his test results. The trial court then addressed the damage to the victim and
stated that the Defendant’s actions “completely destroyed her high school years,” caused
her to be bullied and afraid of men, and “ruined some of the best years of her life.” The
trial court said that the Defendant’s actions also damaged the reputation of teachers in
general and the reputation of Gallatin High School. The trial court found that the crimes
were “reprehensible, offensive, and to an excessive or exaggerated degree.”
Next, the trial court addressed deterrence and found that three of the five factors
enumerated in State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000), supported the need for
deterrence in this case. First, the trial court found that other incidents of the charged
offenses were increasingly present in the community, stating that “[w]e’ve had about three
cases, maybe more . . . of teachers sexually abusing students in this county.” Second, the
trial court found that the Defendant’s crimes were the result of intentional conduct. Finally,
the trial court found that the Defendant’s crimes and convictions had received substantial
publicity beyond that normally expected in the typical case, noting that reporters from a
television station and a newspaper were present at the sentencing hearing and that the case
had been publicized locally and in Nashville.
In sum, the trial found that confinement was necessary to avoid depreciating the
seriousness of the offenses and that confinement was particularly suited to provide an
effective deterrence to others likely to commit similar offenses. The trial court ordered
that the Defendant serve his effective sixteen-year sentence in confinement.
ANALYSIS
On appeal, the Defendant claims that he was denied due process at sentencing
because the trial court allowed hearsay testimony, “infused” the court’s religious beliefs
into the court’s sentencing decisions, failed to consider required statistical information
from the AOC, and considered information outside the Defendant’s actual criminal
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conduct. In the alternative, he contends that we should review the trial court’s sentencing
decisions de novo because the trial court did not follow the purposes and principles of
sentencing when the court infused its religious beliefs into its sentencing decisions, ignored
statistical information from the AOC, and speculated about his other potential criminal
behavior. The Defendant asserts that based on our de novo review, we should resentence
him to full probation or split confinement. The State argues that the Defendant has not
shown a due process violation and that even under de novo review, he is not entitled to
relief. We agree with the State.
I. Due Process
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and Article I, Section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
Cumulative errors at sentencing may warrant a new sentencing hearing even though
individual errors do not require relief. State v. Molly L. Miles, No. 03C01-9812-CR-00447,
1999 WL 1191535, at *11 (Tenn. Crim. App. Dec. 16, 1999) (citing State v. Cribbs, 967
S.W.2d 773, 789 (Tenn. 1998)).
A. Hearsay
First, the Defendant contends that the trial court erred by allowing Investigator Cook
to testify about statements made by the Defendant’s former student and the Defendant’s
ex-wife because the statements were unreliable hearsay. With regard to the former
student’s statements, the Defendant also claims that he did not have an opportunity to rebut
the statements. The State argues that Investigator Cook’s testimony about the former
student’s statements was admissible as reliable hearsay and that the Defendant has waived
the issue with regard to his ex-wife’s statements because he failed to object at the
sentencing hearing. We conclude that the trial court erred by allowing Investigator Cook
to testify about the former student’s statements but that the error was harmless.
During Investigator Cook’s testimony, he stated that at the prosecutor’s request, he
spoke with S.F., who had been the Defendant’s student from 2011 to 2012. Investigator
Cook began to testify about what S.F. told him, and defense counsel objected on hearsay
grounds. The State argued that the testimony was reliable hearsay. Defense counsel
responded that the State had not established that S.F.’s statements were reliable and that
the defense was unaware of the statements prior to the hearing. The trial court stated that
“Rule 104 applies” and ruled that the statements were reliable because they were part of
the officer’s investigation. The State resumed questioning Investigator Cook, and he
testified about S.F.’s claims that the Defendant pursued her and tried to have a relationship
with her. After Investigator Cook testified about S.F.’s statements, he testified about
statements made to him by the Defendant’s ex-wife. The Defendant did not object to those
statements.
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Tennessee Rule of Evidence 104(a) provides that “[p]reliminary questions
concerning . . . the admissibility of evidence shall be determined by the court” and that
“[i]n making its determination the court is not bound by the rules of evidence except those
with respect to privileges.” Although the trial court referred to Rule 104, the trial court
then ruled that Investigator Cook’s testimony about S.F.’s statements were reliable because
they were part of his investigation. Tennessee Code Annotated section 40-35-209(b)
provides that in a sentencing hearing, reliable hearsay is admissible as long as a defendant
“is accorded a fair opportunity to rebut any hearsay evidence so admitted.” Examples of
reliable hearsay include, but are not limited to, certified copies of convictions or documents
and presentence reports. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997).
Initially, we agree with the State that the Defendant has waived any issue regarding
the statements made by his ex-wife because he failed to object to the statements at the
sentencing hearing. See Tenn. R. Evid. 36(a). As to Investigator Cook’s testimony about
S.F.’s statements, the State argues that they were reliable hearsay because they were “akin
to the sort of evidence routinely admitted in presentence reports or victim impact
statements” and because Investigator Cook, who was a trained law enforcement officer,
“presumably would be a more reliable source for an accurate interview than a probation
officer who prepares a presentence report.” The State acknowledges that while the
Defendant did not have advance notice of the statements, he is not entitled to relief because
he did not request a continuance to investigate S.F.’s allegations.
In State v. Benjamin S. Huffman, Jr., No. M2007-02103-CCA-R3-CD, 2009 WL
1349223, at *9 (Tenn. Crim. App. May 14, 2009), this court addressed a police officer’s
testifying at sentencing about a “double hearsay” statement. This court said it was “not
persuaded” that the statement was untrustworthy or unreliable, noting that the officer
learned about the statement while conducting a “thorough investigation” of the accident
scene; that the officer heard the statement from an emergency medical technician, who
treated the declarant at the scene of the accident; and that the officer documented the
statement in his police report. Benjamin S. Huffman, Jr., 2009 WL 1349223, at *9.
Here, Investigator Cook’s involvement in the case was not part of the GPD’s formal
investigation of the crimes. Instead, his investigation occurred more than a year after the
indictment and at the prosecutor’s request apparently to investigate other possible victims
for purposes of sentencing. Investigator Cook did not offer any testimony about the
circumstances in which he questioned S.F., other than he spoke with her on the telephone,
and the record does not demonstrate that S.F. even knew she was speaking with a police
officer. Investigator Cook talked with S.F. approximately ten years after the Defendant
was her teacher, and the Defendant had no opportunity to rebut her statements at the
sentencing hearing. Therefore, we conclude that neither condition of Tennessee Code
Annotated section 40-35-209(b) was met and that the trial court erred by allowing
Investigator Cook to testify about S.F.’s statements.
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The State argues that any error was harmless beyond a reasonable doubt because the
trial court stated during its pronouncement of the Defendant’s sentence that it was not
“going to hold” Investigator Cook’s testimony about S.F.’s statements against the
Defendant. Our review of the sentencing hearing transcript shows that the trial court
actually stated as follows:
[T]he more I hear about [the Defendant], this was an attitude that developed
over a period of time. I heard what [S.F.] told Investigator Cook, and that’s
something that I’ve kind of wondered about and that was not addressed by
the defendant in his allocution statement.
I’m not going to hold that against you, Mr. Richmond, but it just goes
with my thoughts that this attitude that you developed didn’t just happen, and
we’ll go into that in just a minute.
We think the trial court’s comments demonstrate that it considered S.F.’s statements but
that it gave the statements little, if any, probative value. Therefore, we agree with the State
that the trial court’s error was harmless.
B. Religious Beliefs
Next, the Defendant contends that the trial court erred by infusing its religious
beliefs into its decision to deny his request for alternative sentencing. Again, we conclude
that the trial court erred but that the error was harmless.
During Mr. Fuller’s testimony, he stated that he thought the Defendant had “an
encounter with God” in jail and that “I know people will shake their heads in here. I know
people will disagree with that and that’s okay.” The trial court responded, “I don’t. I don’t
shake my head and disagree.” Mr. Fuller’s testimony about religion continued, and the
trial court interjected several of its own religious comments. For example, Mr. Fuller
stated, “Scripture talks about when somebody comes to Jesus, when they have a spiritual
encounter with Jesus Christ, the old part is taken out. The heart -- .” The trial court
interrupted and said, “A new creature; old things have passed.” Later, the following
colloquy occurred:
[THE WITNESS:] So as you referenced, Your Honor, the Bible
speaks about a new creation and a new man and I firmly believe that in the
epitome of darkness, the pain and suffering of [the Defendant’s] life, that he
had that encounter. I do believe that his heart has genuinely been
transformed.
I work with people all day long in ministry. I work in recovery.
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THE COURT: Are you saying that he should be treated different than
anybody else?
THE WITNESS: I’m not saying that.
THE COURT: Okay.
THE WITNESS: I’m just telling you what I saw, yeah.
So -- and I will, you know, testify that I do believe he’s not the same
person.
And to answer your question, Your Honor, this doesn’t excuse
anything that he’s done. This doesn’t excuse his past. It doesn’t excuse his
actions. It doesn’t excuse him or justify anything that he has done. But from
a spiritual standpoint, we know that mercy triumphs justice, that mercy
triumphs judgment. So my -
....
THE COURT: And so you’re saying mercy triumphs that in a rule --
in a court of law?
THE WITNESS: I was saying from a spiritual standpoint, from a
scriptural standpoint.
THE COURT: Okay. Do you understand this is not a church? This
is the government. There are three institutions that God has ordained for
man: the family, the church, and government. All three are separate. Church
is separate from government. Jesus said, Render to Caesar the things that are
Caesar’s, and to God the things that are God’s. Look at Romans 13:1. Now,
you may proceed.
During the Defendant’s allocution, he briefly apologized to the victim’s family. He
then spent a considerable amount of time explaining his past accomplishments, describing
his religious conversion after his arrest, and asserting why justice already had been served
in this case. The Defendant also addressed the trial court’s own religious beliefs, stating,
… I’m a man of God and a man whose life is forever changed by God
and that I trust you. Every case I read -- I read every single case on the kiosk
when I was locked up about you. In every case -- and God revealed to me
that I can trust your decision, whatever it is, and I’ll be okay because God
will be with me. You have shown so much integrity and trust throughout the
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years that I know -- I know that the same God you talk about is the same God
I talk about. I can feel it. I know it. And even though sometimes we want
to deny this fact, godly -- truly godly men cannot define this fact -- we cannot
deny it and who he is.
During the announcement of its sentencing decision, the trial court made multiple
references to religion. For example, the trial court said that “justice must be firmly
grounded upon moral standards of right and wrong that flow out from God’s character.”
The trial court also said that “God demands forgiveness” but that [j]ustice is the operation
of the government.” Later, the trial court said, “These crimes involved perversion,
immorality, paganism. They were godless because your god was your sexual appetite and
your weapon was the internet.” The trial court went on to say that “the grace of God”
prevented the crimes from being much worse and that the Defendant’s messages to the
victim exemplified “godlessness and perversion.”
The State argues that the trial court’s religious comments were responses to Mr.
Fuller’s testimony and the Defendant’s allocution. At oral arguments, defense counsel
acknowledged that some of the trial court’s comments were responsive to Mr. Fuller’s
testimony. However, defense counsel asserted that the trial court’s remaining comments
were improper because trial courts are prohibited from infusing religious beliefs into
sentencing decisions.
Tennessee Code Annotated section 40-35-102(4) provides that “[s]entencing should
exclude all considerations respecting . . . religion of the . . . individual.” Our supreme court
has held that “[r]eference to religious law during a criminal trial has been disapproved in
this State, and trial court judges should therefore refrain from any discussion on religious
law.” State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994), abrogated on other grounds
by State v. Saylor, 117 S.W.3d 239, 246 (Tenn. 2003).
This court previously has advised this same trial court to refrain from making
religious remarks during sentencing. See State v. Timothy B. Lenarduzzi, No. M2012-
01236-CCA-R3-CD, 2013 WL 436443, at *8 (Tenn. Crim. App. Feb. 5, 2013). Moreover,
we agree with the Defendant that the trial court’s religious comments in this case were
improper. After the trial court made its comments, though, the trial court stated that the
judge’s role was “to evaluate and judge cases fairly according to an established standard of
law” and that the trial court was “going to rule today, according to what the facts are and
the rule of law, nothing else.” The trial court also stated that sentencing should exclude all
considerations about religion, including “Christians and non-Christians and any religion
under the sky.” The trial court then gave a lengthy, well-reasoned explanation for ordering
confinement based on the circumstances of the offenses and deterrence. Therefore, we
conclude that Defendant is not entitled to relief on this issue.
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C. Statistical Information
The Defendant claims that the trial court erred by failing to consider the statistical
information provided by the AOC in its sentencing decision. The State argues that we
should consider the issue waived because the Defendant should have asked to provide the
information to the trial court as a late-filed exhibit and that, in any event, the trial court’s
failure to consider the statistical information was a “minor” error that does not require
reversal of the sentence. Again, we conclude that the trial court erred, but that the
Defendant is not entitled to relief.
At the conclusion of the proof, the trial court stated that it had considered seven of
the eight factors listed in Tennessee Code Annotated section 40-35-210(b). However, the
trial court said that it was unable to consider the remaining factor, statistical information
provided by the AOC as to sentencing practices for similar offenses in Tennessee,
explaining,
I’ve tried to get on that website and I can’t do it. I can’t get on it, and I’m
sorry. But the Court has reservations about looking at statistics about
sentencing practices for similar cases. Every case is different. There is not
a case anywhere that’s anything like this, and trial judges do not want to be
robots.
Tennessee Code Annotated section 40-35-210(b) lists eight factors that the trial
court “shall” consider to determine the specific length of the sentence and “the appropriate
combination of sentencing alternatives.” One of those factors is “[a]ny statistical
information provided by the [AOC] as to sentencing practices for similar offenses in
Tennessee.” Tenn. Code Ann. § 40-35-210(b)(6). Therefore, the trial court had a statutory
duty to consider the statistical information and erred by failing to do so.
When the trial court fails to make the requisite findings, this court can either conduct
a de novo review or remand the case to the trial court to consider the requite factors. State
v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013). We think that de novo review is appropriate
in this case and that the trial court’s error does not necessitate reversal of the trial court’s
sentencing decision. We will address de novo review below.
D. Additional Criminal Conduct
Finally, the Defendant contends that the trial court erred by considering information
beyond his actual criminal conduct because the trial court “spent considerable energy
speculating about what could have happened if various parties had not intervened.” In
support of his argument, the Defendant notes that the trial court repeatedly referred to the
Defendant’s requests for the victim to meet him in the closet and that the trial court stated,
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“Had it not been for the grace of God and the intervention of [another student], . . . [the
crimes] would have been much worse.”
We disagree with the Defendant’s claim that the trial court was speculating about
what could have happened in the closet. The trial court made its comments about the closet
during its consideration of the nature and circumstances of the offenses, and the record is
replete with evidence that the Defendant wanted the victim to meet him in the closet for
sex. According to the State’s recitation of facts at the guilty plea hearing, the Defendant
often asked the victim to meet him in his closet to engage in sexual activity, and he
pressured her for more nude photographs to “repay” him when she failed to meet him.
Investigator Hope testified, without any objection from the defense, that the Defendant
kept asking the victim to have sex with him in the closet and that Investigator Hope
“absolutely” thought the Defendant would have had sex with the victim if the victim had
“showed up.” The Defendant himself stated in the psychosexual risk assessment that he
wanted “alone time” with the victim in the closet so that she could give him a “blow job.”
Our review of the Kik messages shows that the Defendant repeatedly asked the victim to
meet him in the “back room” for sex. Therefore, the trial court did not err by considering
the evidence as part of the nature and circumstances of the offenses.
To summarize, we have concluded that the trial court erred by allowing hearsay
testimony, by making religious references during sentencing, and by not considering
statistical information from the AOC However, the trial court’s ruling spans more than
forty-six pages in which the court thoroughly considered and analyzed almost all of the
factors relevant to alternative sentencing. The trial court carefully explained why
confinement was necessary to avoid depreciating the seriousness of the offenses and why
confinement was particularly suited to provide an effective deterrence to others likely to
commit similar offenses. Therefore, we do not think the errors, individually or
cumulatively, deprived the Defendant of due process. However, we conclude that the
errors warrant de novo review of the trial court’s sentencing decisions.
II. Denial of Alternative Sentencing
The Defendant contends that upon de novo review, we should order that he serve
his effective sixteen-year sentence as full probation or split confinement. The State argues
that the record supports the trial court’s denial of alternative sentencing. We agree with
the State.
Ordinarily, this court reviews the length, range, and manner of service of a sentence
imposed by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (applying the Bise standard to alternative sentencing).
In determining the defendant’s sentence, the trial court considers the following factors: (1)
the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
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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 enhancement and mitigating factors; (6) any statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See Tenn. Code Ann. § 40-35-210(b); see also Bise,
380 S.W.3d at 697-98. The trial court also must consider the potential or lack of potential
for rehabilitation or treatment. Tenn. Code Ann. § 40-35-103(5). The burden is on the
Defendant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-
401, Sent’g Comm’n Cmts.
Regarding alternative sentencing for a felony, a defendant is eligible for alternative
sentencing if the sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-
35-303(a). Moreover, a defendant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). 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). A defendant with a long history of criminal conduct and
“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).
We have considered the aforementioned factors, including the statistical
information provided by the AOC, as well as the purposes and principles of sentencing.
The trial court did not take judicial notice of the statistical information provided by the
AOC. This court is taking judicial notice of and is considering the statistical information
provided by the AOC.
First, as defense counsel correctly noted at sentencing, the Defendant’s eight
convictions are Class B felonies. See Tenn. Code Ann. § 39-13-529(e)(1). Therefore, he
is not considered to be a favorable candidate for alternative sentencing. As to the statistical
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information provided by the AOC, the Defendant’s sentencing hearing occurred in July
2021. In March 2021, the AOC published a statistical report of sentencing for defendants
sentenced between July 1, 2012, and June 30, 2020. According to that report, from 2019
to 2020, 50.5% of defendants convicted of Class B felonies were sentenced to
incarceration. The report also shows that the average incarceration length for defendants
convicted of Class B felonies was 110.50 months or 9.20 years and that the median
incarceration length was 96.00 months or eight years. In this case, the Defendant was
sentenced to eight years of incarceration for each of his convictions, which was less than
the average and the same as the median. Thus, his sentences are not out of line with
sentences imposed in other cases.
Additionally, we agree with the trial court that confinement is necessary to avoid
depreciating the seriousness of the offenses. The recitation of the facts at the guilty plea
hearing, the testimony at the sentencing hearing, the versions of the facts presented in the
presentence report and the psychosexual risk assessment, and our review of the Kik
messages and photographs introduced into evidence confirm the serious nature of these
crimes. The Defendant was the victim’s high school teacher. His messages show that he
pursued her, that he groomed her, and that he constantly pressured her to send him nude
photographs of herself. He instructed her on how to pose in sexually explicit positions for
him, and he repeatedly tried to get her to meet him in his classroom closet for sex. Many
of the Defendant’s messages about what he wanted to do to the victim sexually are too
explicit and vulgar to quote in this opinion. When the victim made excuses as to why she
could not meet the Defendant, he demanded more nude photographs of her as “repayment.”
He sent her photographs of his exposed and erect penis to her, and he even sent her a video
of himself masturbating. The video and most of the photographs were made at school. The
Defendant also put his erect penis against the victim’s back while other students were
present. Like the trial court, we think the crimes were “reprehensible, offensive, and to or
otherwise of an excessive or exaggerated degree.” State v. Trotter, 201 S.W.3d 651, 654
(Tenn. 2006). Accordingly, we conclude that the trial court did not err by denying
alternative sentencing.
CONCLUSION
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.
_________________________________
JOHN W. CAMPBELL, SR., JUDGE
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