State of Tennessee v. Kristi Dance Oakes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 24, 2007

STATE OF TENNESSEE v. KRISTI DANCE OAKES

Direct Appeal from the Circuit Court for Sevier County

No. 10656-II Richard R. Vance, Judge

No. E2006-01795-CCA-R3-CD - Filed September 27, 2007

The Defendant, Kristi Dance Oakes, pled guilty to one count of statutory rape. The trial court denied

her request for judicial diversion or full probation and sentenced her to eighteen months, of which

six months is to be served in the county jail, followed by twelve months of supervised community

probation. She appeals that decision. Upon review, we affirm the judgment of the trial court, after

modifying the sentence. However, we remand for the correction of a clerical error in the judgment

form.

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

Modified and Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which J.C. MCLIN and D. KELLY

THOMAS, JR., JJ., joined.

Barry H. Valentine, Newport, Tennessee, for the Appellant, Kristi Dance Oakes.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;

Al C. Schmutzer, Jr., District Attorney General; Steven R. Hawkins, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Facts

On June 23, 2004, an officer with the Tennessee Valley Authority Police received a

complaint that a woman was screaming in a parked car located at the Douglas Dam parking lot in

east Tennessee. When the officer approached the car, he found the Defendant giving oral sex to a

young man in the backseat. After taking the Defendant into custody, the officer discovered that she

was thirty-one years old and that the young man was sixteen years old. The officer also discovered

that the Defendant had been the young man’s biology teacher during the previous school year and

that they both were spending the summer working together at the NASCAR Speedpark.1

Subsequently, a Sevier County Grand Jury indicted the Defendant for statutory rape, a Class

E felony. The Defendant filed an application for pretrial diversion, which included twenty letters

written on the Defendant’s behalf describing, in part, her good reputation and positive contributions

as a teacher and mother.2 After the District Attorney General denied the Defendant’s application,

the Defendant filed a petition for a writ of certiorari requesting that the trial court review the District

Attorney General’s decision. When the trial court upheld the District Attorney General’s decision

and denied the Defendant’s oral request to appeal pursuant to Rule 9 of the Tennessee Rules of

Appellate Procedure, the Defendant filed a Rule 10 application of extraordinary appeal with this

Court. After granting the Rule 10 application, this Court vacated the trial court’s order and

remanded the case to the District Attorney General. State v. Kristi Dance Oakes, No. E2005-01668-

CCA-R10-CD, 2006 WL 176550, at *5 (Tenn. Crim. App., at Knoxville, Jan. 23, 2006).

Specifically, this Court stated:

Applying the rules to the prosecutor’s review of the pretrial diversion petition, we

find departures from the prescribed process. We find no indication in the

prosecutor’s response that he considered all of the mandated factors, and we note that

the [D]efendant’s apparently good prospects for rehabilitation, lack of a criminal

record, and her excellent social history support her bid for pretrial diversion. . . .

Obviously, the circumstances of the offense were paramount in the prosecutor’s

decision, but his response fails to articulate that he considered all of the factors

supporting diversion before deciding that the circumstances of the offense

overwhelmed the aggregate positive factors.

Id. at *4. On remand, the District Attorney General again denied pretrial diversion, and the

Defendant filed her second petition for a writ of certiorari asking the trial court to review the District

Attorney General’s decision. Attached as exhibits to this second petition were four additional letters

supporting the Defendant’s character.3 After the trial court again upheld the District Attorney

1

This brief recitation of facts comes from the factual basis for the Defendant’s guilty plea as presented by the State at

the guilty plea proceedings on June 19, 2006.

2

A number of different people wrote these letters on behalf of the Defendant, including her godparents, one of her

cousins, several members of her church, a parent of one of her former students, her college advisor, and friends of her

family. These letters were also entered as exhibits at the Defendant’s sentencing hearing on July 27, 2006.

3

The specific content of each of these letters can be summarized as follows: (1) a letter from the Defendant’s therapist

indicating that the Defendant had met with her on five previous occasions to discuss, in part, appropriate boundaries and

paying the consequences for poor judgment and choices; (2) a reference letter from one of the Defendant’s employers

showcasing the Defendant’s outstanding job performance; (3) a letter from an occupational therapist who praises the

Defendant’s abilities as a mother and urges that the Defendant’s daughter, who has a variety of special needs, requires

the Defendant’s constant care; and (4) a letter from the Defendant’s husband indicating that he and the Defendant have

since reconciled, that he has “total faith in her,” and that his family would suffer greatly if the Defendant were

incarcerated. These letters were also considered at the Defendant’s sentencing hearing. Ironically, several comments

2

General’s decision, the Defendant pled guilty to one count of statutory rape. The trial court accepted

the plea and the agreed upon sentence length of eighteen months.

The trial court then conducted a sentencing hearing to determine: (1) whether to grant judicial

diversion or full probation; and (2) the manner of service for the Defendant’s sentence. At the

sentencing hearing, the trial judge heard testimony from Patricia Fletcher, the victim’s mother, Tim

Wagers, the officer who arrested the Defendant, and Rebecca Dance, the Defendant’s mother. In

addition, the following items were entered into evidence as exhibits: (1) the Defendant’s pretrial

diversion application and the State’s responses; (2) the victim’s statement; (3) the Defendant’s

psychosexual evaluation; and (4) the Defendant’s Presentence Investigation Report.

At the sentencing hearing, Patricia Fletcher testified that she first became aware of the

Defendant when she caught the victim chatting with the Defendant on the computer late one night

during the school year. Fletcher stated that the victim told her that he and the Defendant were

studying together. Fletcher testified further that, on the day of the incident, the victim told her that

the Defendant had given him a ride to the NASCAR Speedpark the day before and would also be

picking him up that evening. Fletcher stated that, when the Defendant called the victim to let him

know she was waiting outside, the victim ran out the door. Fletcher went outside to speak to the

Defendant, but, by the time she got there, the victim and Defendant had already left together. When

the victim did not return home on time that night, she began to worry and called some of the victim’s

friends. She also called the number that the Defendant had called the victim from earlier because

it was stored on Fletcher’s caller ID, but she did not successfully reach the Defendant. Fletcher

stated that, about thirty minutes later, she received a call from someone from the police department,

who informed her to come down to the station. The police would not tell her what was wrong over

the phone, only that the victim and the Defendant were there together. Fletcher stated that, since she

arrived and found out about the incident, she has been angry and devastated. Fletcher testified that

she did not even know that the Defendant had been working with the victim until Fletcher spoke with

the victim the day after the incident. When asked if she had placed trust in the Defendant as a parent

with regard to her son, Fletcher responded that because the Defendant was a teacher, Fletcher “had

no reason not to trust her.”

Fletcher further testified that the first time she ever had any contact with the Defendant was

a few days after the incident. The Defendant called Fletcher to apologize for what had happened

in the letter from the Defendant’s husband about the pervasiveness in society of teacher-student sex offenses were critical

in persuading the trial court to deny judicial diversion at the sentencing hearing. The Defendant’s husband, who is a

teacher, said, in part:

Issues such as those dealing with [the D efendant’s] case will continue to happen until something is

done about this pop-culture – “I’m In Love W ith Stacey’s Mom” – youth. I have seen numerous

occasions where much worse has been carried out in the school setting . . . . Not to downplay [the

Defendant’s] case, but in an effort to realize that this is a grand problem that occurs much more than

we realize, we must attach the true problem as a society – our youth gaining their life styles and goals

from an unmoral pop culture.

3

with the victim. Fletcher stated that she asked the Defendant why she did it, and the Defendant told

her that she did not know. The Defendant mentioned to Fletcher that she had been having marital

problems and was really concerned that she would not be able to teach again. Fletcher further

testified that the Defendant kept emphasizing that she is a good teacher and seemed more concerned

about her teaching prospects than about what had happened between her and the victim.

When asked whether the victim has suffered any behavioral problems as a result of this

incident, Fletcher stated that the victim is now on probation and has had “a lot of problems with

getting in fights and a lot of problems with girlfriends.” Fletcher also stated that the victim “seems

embarrassed about [the incident] . . . [be]cause kids had been taunting him about it” and that “it’s

just been embarrassing for the whole family.”

On cross-examination, Fletcher stated that the Defendant has called the victim one time since

the incident but has made no other attempts to contact him. Fletcher also stated that, during the

period of time that the Defendant was the victim’s teacher, Fletcher had no contact with her but had

heard the victim mention her name before. When asked about the victim now, Fletcher stated that

he is planning on going into the military and is “doing a lot better.” Fletcher also stated that, prior

to the incident, the victim “had a temper, like any kid” but “very seldom” fought with other kids.

Fletcher further explained that there was no indication that the Defendant and victim had engaged

in sexual relations prior to the incident. Fletcher stated, however, that she had a “bad vibe” about

the rides to work and late-night computer chats between the Defendant and victim.

Officer Tim Wagers testified that on the night of the incident, June 23, 2004, he received a

call to investigate a woman’s screams coming from a dark-colored vehicle parked on Dike 4 at

Douglas Lake in Sevier County. When he went to the area and approached the vehicle, he saw that

the Defendant was topless, the victim’s pants were down, and the Defendant’s head was in the

victim’s lap. Officer Wagers said once he realized that the Defendant was performing oral sex on

the victim, he broke it up and told the Defendant and victim to get dressed and step out of the

vehicle. The victim then told Officer Wagers that he was sixteen years old, and the Defendant said

she was thirty-one years old and was the victim’s biology teacher.

When asked about what the victim told him regarding where the victim and Defendant were

working that summer, Officer Wagers testified that the victim told him that the Defendant “came to

work [at the NASCAR Speedpark] to be with him” and that “they would be together if it wasn’t [for]

the age difference.” Additionally, when asked about the Defendant’s demeanor directly after she was

caught, Officer Wagers stated that the Defendant “never was upset” and “was cheery [and] upbeat.”

Officer Wagers also stated that, when he saw the Defendant at the courthouse a few days after the

incident, “her demeanor and attitude was just nonchalant, not a care in the world.” Officer Wagers

stated that the Defendant showed no remorse or embarrassment over what he caught her doing with

the victim. On cross-examination, Officer Wagers stated that, because he had never met the

Defendant prior to this incident, he had no way of knowing how she normally reacts to and deals

with bad situations. Officer Wagers also stated that neither the victim nor the Defendant admitted

to any intimate encounters between the two of them prior to this incident.

4

Rebecca Dance testified that, since the time of this incident, she has had almost daily contact

with the Defendant. Dance stated that the Defendant lived with her while growing up and again right

after the Defendant got married. The Defendant and her husband helped Dance take care of Dance’s

husband when he was sick. Dance stated that the Defendant first started working in high school and

has basically maintained continuous employment since then. Dance further testified that she never

had any problems with the Defendant when the Defendant was a juvenile and knows of no problems

that the Defendant has had since this incident.

Dance also testified that the Defendant has two children, ages eight and four. The eight-year-

old was born an ultra-preemie and has sensory integration dysfunction. She has asthma and usually

contracts pneumonia a couple of times a year. The four-year-old is in pretty good health, but has

reflux and occasionally contracts bronchitis. Dance stated that the Defendant is “a wonderful

mother” and that “both of the children are very, very close to her.” Dance also explained that the

Defendant is regarded highly in the community. She said that the Defendant “always grew up in

church” and has spent her whole life volunteering for a local charity. Dance also said that the

Defendant has recently done mission projects and “has always been very sensitive to other people’s

needs.”

When asked about how the Defendant’s employment has changed since the incident, Dance

testified that the Defendant “lost her career” and has been “unable to get a [comparable] job.” Dance

stated that the Defendant was terminated from a grocery store because of the Defendant’s negative

portrayal in the media. Dance also stated that she thinks the Defendant only makes about $100 a

week at her current restaurant job. Dance further testified that, after the Defendant and her husband

lost the home they once owned due to loss of income, the Defendant moved into a trailer about 200

yards from Dance’s home. Because the Defendant lost her vehicles, Dance has been providing her

with transportation for the past two years. Dance further stated that she, her mother, and the

Defendant’s mother-in-law, have been helping the Defendant buy groceries and pay bills. Dance has

never been aware of any drug usage or alcohol problems with the Defendant.

In addition to this testimony, the trial court reviewed the Defendant’s pretrial diversion

application and the State’s responses. The application contained the reference letters discussed

above and the Defendant’s own recitation of the facts. The Defendant’s version of the facts was

more detailed than that given by Wagers during his testimony but is otherwise substantially similar.

The Defendant added that other teachers and parents worked alongside students at the NASCAR

Speedpark during the summer of 2004 and that she received the job through one of the parents. She

also said that she spoke with Fletcher “on various occasions” prior to the incident, and Fletcher

assured her that it was okay for the Defendant and victim to ride to work together. Additionally, the

Defendant stated that, on the night of the incident, she had high blood pressure and was not feeling

well physically. Further, when she and the victim were parked out at Douglas Lake on the night of

the incident, the victim “leaned across and kissed [her].” After admitting to performing oral sex on

the victim, the Defendant stated that she “terribly regret[s] what occurred and realizes[s] it should

never have happened.” The Defendant explained that, shortly after the incident, she voluntarily

resigned from the NASCAR Speedpark and Sevier County Schools.

5

In its responses to the Defendant’s pretrial diversion application, the State noted that “[the]

situation of an adult female having sex with a juvenile male is an emerging phenomenon in this

country that has garnered a lot of publicity both nationally as well as locally.” The State mentioned

another recent case in Sevier County that is like the case at bar and attached a copy of a recent

newspaper article involving a similar case in Franklin, Tennessee.4 The State also attached a

statement from the principal at the high school where the Defendant taught before this incident. In

the statement, the principal recounted that “sometime during the last school year, one of my

custodians came to me and reported that [the Defendant] was locked in a room with a male student.”

He further stated that when he opened the door, “the two were far apart and talking.”

The trial court also reviewed the victim’s written statement about the incident. The victim

explained that he had a C+ average while enrolled in the Defendant’s biology class, and the

Defendant “was friendly with all of the students.” Though he stated that he never received extra help

from the Defendant during the school year, the victim clarified that, towards the end of the school

year, he and the Defendant “communicated via AOL . . . about what we were going to do this

summer.” The victim stated that on the night of the incident, the Defendant “started talking to me

about her marriage problems.” After explaining that the Defendant performed oral sex on him for

about ten minutes, the victim stated that “the whole time that [the Defendant] and I worked at the

Speedpark, the topic of sex never came up.” Additionally, the victim said that the Defendant never

asked him to lie for her.

The trial court also reviewed the Defendant’s psychosexual evaluation. After analyzing the

Defendant’s mental status, her feelings regarding the incident with the victim, her sexual history, and

all other relevant biographical information, the evaluator reported that the Defendant “has good

insight in most areas of her life, though her insight about [the incident] is only fair.” The evaluator

also stated that the Defendant has a stable lifestyle, is strongly invested in the well-being of her

children, and “can be considered a low risk for further sexual offending.” The evaluator concluded

that the Defendant “can be safely maintained in the community with supervision.”

The trial court also reviewed the Presentence Investigation Report. In that report, the

Tennessee Board of Probation and Parole stated that the Defendant has no other convictions or

felony arrests and that she would be “a medium risk for successful completion of supervised

community release.”

After closing arguments, the trial court addressed the Defendant’s application for judicial

diversion by weighing all the evidence described above. The trial court stated that “the facts of this

particular offense are . . . especially shocking and offensive.” It placed great emphasis on the fact

that, as a teacher, the Defendant held a position of trust in the community and was responsible for

upholding her status as an authority figure and role model for young people. The trial court also

4

This article mainly deals with a thirty-seven-year-old woman who admitted to having sex with a sixteen-year-old boy

and was subsequently sentenced to 117 days in jail and one year of probation. It also states that there has been “an

increase in cases of women having sex with teenage boys.”

6

emphasized that the relationship between a teacher and student “must be a positive and appropriate

one.” The court felt that the Defendant has not shown a significant amount of remorse for her

actions. Her main concerns have been about the consequences to her and her family. She has not

taken enough time to consider that “[the victim] was held up to ridicule” as a result of this incident.

The trial court also stated that deterrence is a “very important factor” in the judicial diversion

analysis. The court paid particular attention to the State’s evidence of similar cases, including the

newspaper article and the statements made by the Defendant’s husband in his letter about the

pervasiveness of this type of incident in schools, and concluded that these types of sexual offenses

are “a serious problem in our society.” Determining that punishment is warranted in this case, the

trial court found that the factors against judicial diversion outweighed the factors for it. Accordingly,

the trial court denied the Defendant’s request for judicial diversion.

In considering whether to grant the Defendant full probation, the trial court explained that

it is required to look at the same general factors as it does for judicial diversion. The court stated

that the Defendant’s “particularly shocking” actions in this case were not the result of “a momentary

lapse of judgment, but the result of a continuing inappropriate relationship.” Even though the

Defendant lost her teaching career and experienced tremendous financial hardship because of her

actions, the trial court decided that the victim’s extensive suffering outweighs these setbacks. The

court considered all the evidence suggesting that the Defendant is a viable candidate for alternative

sentencing, including the findings in the psychosexual report, presentence investigation, and referral

letters written on her behalf, but found that “[p]unishment is important as a deterrent to others who

might find themselves similarly tempted.” The court also considered the mitigating factors that the

“Defendant’s conduct neither caused nor threatened . . . serious bodily injury” and that she has

received counseling, but it stated that both the duration of the improper relationship and the regular

daily contact between the Defendant and victim leads the court to believe that “this inappropriate

conduct would have continued . . . had the police not intervened.” As a result, the trial court denied

full probation and sentenced the Defendant to eighteen months, of which six months is to be served

in the county jail, followed by twelve months of supervised community probation.5 The Defendant

filed a timely notice of appeal to this Court on August 28, 2006.

II. Analysis

On appeal, the Defendant alleges the following: (1) the trial court abused its discretion in

denying her request for judicial diversion; (2) the trial court erred in denying her alternative request

for full probation and sentencing her to eighteen months, of which six months is to be served in the

county jail, followed by twelve months of supervised community probation; and (3) the trial court

illegally sentenced her to community supervision for life following the expiration of her sentence.

5

The court also ordered the Defendant to “register as a sex offender . . . ; comply with the sexual offender directives;

produce a DNA sample . . . ; maintain full-time employment; pay court costs; [and] follow a plan of counseling approved

by her probation officer.”

7

A. Judicial Diversion

The Defendant argues that the trial court erred in denying judicial diversion because it failed

to properly weigh all the factors that courts must consider in reviewing a petition for judicial

diversion. When a defendant challenges the denial of judicial diversion, we review the trial court’s

decision under an abuse of discretion standard. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim.

App. 1997). We must conclude that “no substantial evidence exists to support the ruling of the trial

court” if we are to grant the Defendant relief. Id.

Judicial diversion falls under Tennessee Code Annotated section 40-35-313(a)(1)(A),

pursuant to which a judge can defer proceedings without entering a judgment of guilty. The

defendant would be placed on probation, but she would not be considered a convicted felon. T.C.A.

§ 40-35-313(a)(1)(A) (2006). To be eligible for judicial diversion, a defendant must have pled guilty

to, or been found guilty of, a Class C, D, or E felony and must have not previously been found guilty

of a felony or Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(I). In the case under submission,

the trial court found that the Defendant was eligible for judicial diversion based on these

requirements. However, eligibility in and of itself does not entitle a defendant to judicial diversion.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

Once a defendant is deemed to be eligible for judicial diversion, the trial court must consider

several factors when deciding whether or not to grant judicial diversion. Due to the similarities

between pretrial diversion — determined initially by the District Attorney General — and judicial

diversion, courts draw heavily from pretrial diversion law and examine the same factors:

[A court] should consider the defendant’s criminal record, social history, mental and

physical condition, attitude, behavior since arrest, emotional stability, current drug

usage, past employment, home environment, marital stability, family responsibility,

general reputation and amenability to correction, as well as the circumstances of the

offense, the deterrent effect of punishment upon other criminal activity, and the

likelihood that [judicial] diversion will serve the ends of justice and best interests of

both the public and the defendant.

Cutshaw, 967 S.W.2d at 343-44. Additionally, “a trial court should not deny judicial diversion

without explaining both the specific reasons supporting the denial and why those factors applicable

to the denial of diversion outweigh other factors for consideration.” Id. (citing Bonestel, 871 S.W.2d

at 168).

We initially note that all parties are in agreement, and the presentence report indicates, that

the Defendant has never been convicted of a Class A misdemeanor or any other felony. Thus, she

is eligible for judicial diversion. Next, in analyzing whether to grant judicial diversion, the trial court

found that a number of factors weighed against judicial diversion. First, the trial court focused on

the circumstances of the offense and concluded that the nature of this teacher-student relationship

8

was highly inappropriate, especially because the evidence showed that the Defendant engaged in

late-night internet communications with the victim throughout the school year and then went to work

at the same place as the victim immediately after the school year ended. The court further stated that,

in light of the Defendant’s role as an educator in society, it is “especially shocking and offensive”

that “a 31-year-old teacher would engage in sexual conduct with her barely-16-year-old student.”

Next, the court felt that the Defendant was not amenable to correction primarily because she had not

been mindful enough of the consequences of her actions to the victim and instead focused too much

on how this had impacted her. Finally, in looking at all the evidence presented, the court decided

that the need for deterrence was too great to ignore. Evidence on this issue came from a letter from

the Defendant’s husband, as well as a newspaper article attached to the State’s response to the

Defendant’s pretrial diversion application. The court stressed that “[this kind of conduct] leads to

grave consequences for the student, for the teacher, [and] for the trust and confidence . . . in our

educational system.” Though the court did not specifically discuss each factor that weighed in favor

of judicial diversion – primarily the Defendant’s lack of a criminal record, her cooperative behavior

since this incident occurred, and her strong bond with her children and community – it was clear that

the court had weighed all the evidence and concluded that the “disturbing” nature of this offense,

coupled with a lack of remorse and strong need for deterrence, outweighed any evidence favoring

judicial diversion.

With respect to the circumstances of the offense, the Defendant argues that the trial court

relied too heavily on the nature of her relationship with the victim and failed to note that the victim

was a former student of the Defendant, school had already ended by the time of the incident, and that

the Defendant did not maintain an authoritative position over the victim while they both worked at

the NASCAR Speedpark. She also explains that “off-duty acts that are unrelated to [the] defendant’s

duties of public employment are not a proper basis for . . . justifying a denial of [judicial] diversion.”

State v. Lane, 56 S.W.3d 20, 27 (Tenn. Crim. App. 2000). The Defendant further argues that there

is no evidence in the record to prove that she and the victim had any kind of “inappropriate

relationship” prior to the date that the incident occurred.

In addressing her lack of remorse, the Defendant argues that her psychosexual evaluation

proves that she has taken full responsibility for her behavior and has acknowledged the harmful

nature of sexual abuse. She states that the trial court improperly failed to consider that she sought

counseling, which addressed, in part, “making mistakes and paying the consequences for poor

judgment.” The Defendant further claims that because this Court has stated that remorse per se is

not an appropriate factor in denying judicial diversion, see State v. Kristi Dance Oakes, No. E2005-

01668-CCA-R10-CD, 2006 WL 176550, at *3 (Tenn. Crim. App., at Knoxville, Jan. 23, 2006), the

trial court erred in placing so much weight on this factor.

In addressing the deterrence issue, the Defendant argues that the trial court failed to consider

the Hooper factors for deciding whether there is a need for deterrence and whether incarceration is

the proper means to achieve that goal. In Hooper, the Court stated that “since the ‘science’ of

deterrence is imprecise at best,” trial courts should consider the following factors in weighing the

deterrence issue:

9

(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 substantially

encouraged or assisted others in achieving the criminal objective;

(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 conviction.

Hooper, 29 S.W.3d at 10-12. The Court added, however, that “[t]hese factors are meant to serve

only as a guide, and a court need not find that all these factors are present before ordering

incarceration based on a need to deter similar crimes.” Id. at 12. In the case under submission, there

is evidence in the record that satisfies the first three Hooper factors – proof of other incidents in the

community and state of statutory rape involving an adult female and teenage boy, the Defendant’s

statement that she knew what she was doing while committing the offense, and the negative media

publicity that led to the Defendant’s termination from her grocery store job.

The Defendant stresses that, because the State did not present any witnesses to testify

regarding the need for deterrence, there was no basis for the trial court to rely so heavily on that

factor. The Defendant further argues that the State’s reliance on a newspaper article, a pending

statutory rape indictment in Sevier County, and a letter from the Defendant’s husband, is insufficient

to prove that there is a serious societal problem with this type of sexual offense.

Upon review, we conclude that there is substantial evidence to support the trial court’s

conclusion that the circumstances of the offense, the Defendant’s lack of remorse, and the need for

deterrence warrant a denial of judicial diversion. As the victim’s biology teacher, the Defendant held

a position of public trust. The community expected her to serve as an educator and role model to

her students. Even though the evidence shows that the Defendant and victim only once engaged in

an illegal sexual act, their relationship was ongoing. The evidence shows that the Defendant engaged

in late-night internet communications with the victim throughout the school year, went to work with

the victim at the NASCAR Speedpark the following summer, and gave the victim rides to and from

work on multiple occasions.

In our view, the Defendant’s reliance on State v. Lane, to emphasize that she was “off-duty”

when the incident occurred, is misplaced. See Lane, 56 S.W.3d at 26. Upon her arrest, the

Defendant told Officer Wagers that she was the victim’s biology teacher. Additionally, the trial

court in this case stated that “[the] evidence shows, and common sense tells us, that the [teacher-

student] relationship, once formed, is [always] the relationship between these two parties.” We agree

10

with the trial court’s assessment. In our view, a teacher can not be “off-duty” from her position as

an authority figure and role model when she interacts with her students, regardless of whether the

interaction is on school premises or not. In addition, teachers occupy a position of public trust, and

society expects them to refrain from engaging in sexual activity with their students. State v. Ronald

Joseph Reece, No. W2004-01130-CCA-R3-CD, 2005 WL 452451, at *5 (Tenn. Crim. App., at

Jackson, Feb. 25, 2005). In the case under submission, the evidence in the record proves that the

Defendant abused her position of public trust, and, thus, the circumstances of the offense weigh

against her.

We also conclude that there is evidence of the Defendant’s lack of remorse. Testimony from

Patricia Fletcher, the victim’s mother, revealed that, when the Defendant called her after the incident,

the Defendant seemed more concerned about the fate of her teaching career than about the impact

of the incident on the victim and his family. Also, Officer Wagers testified that, during the time

immediately following her arrest, the Defendant maintained a positive and upbeat attitude and did

not seem to be embarrassed by, or sorry for, what she had done. According to the Defendant’s

psychosexual evaluation, the Defendant only has a fair insight about what happened with the victim

and the ramifications for her actions. Because the trial court looked at several other factors besides

remorse in denying judicial diversion, the Defendant’s contention that denial was based on remorse

per se is invalid. Lack of remorse is an appropriate factor for a trial court to consider in deciding

whether to grant judicial diversion. See State v. Edward Arnold Rivera, No. W2001-00857-CCA-

R9-CD, 2002 WL 1482655, at *3 (Tenn. Crim. App., at Jackson, Feb. 4, 2002). Even though there

is some evidence in the record indicating that the Defendant is sorry for what transpired, the trial

court did not abuse its discretion by giving more weight to the evidence of lack of remorse.

With regard to deterrence, there is some aspect of general deterrence in every case, see

Hooper, 29 S.W.3d at 10, and, in analyzing the weight that trial courts give to the deterrence issue,

the Tennessee Supreme Court has stated:

[W]e will presume that a trial court’s decision to incarcerate a defendant based on a

need for deterrence is correct so long as any reasonable person looking at the entire

record could conclude that (1) a need to deter similar crimes is present in the

particular community, jurisdiction, or in the state as a whole, and (2) incarceration

of the defendant may rationally serve as a deterrent to others similarly situated and

likely to commit similar crimes.

Id. We conclude that there is evidence in the record to support both of these elements. The State

presented evidence regarding two similar cases – one in the same county as this case and one

elsewhere in the state. Further, the newspaper article attached to the State’s response to the

Defendant’s pretrial diversion application contains a general discussion about the prevalence of adult

females engaging in sexual relations with teenage boys. Additionally, in the letter written by the

Defendant’s husband, he candidly stated that he has “been placed in situations, when [he] taught high

school, where something of this nature could have happened; [likely] most teachers can say that if

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they are honest.” He also stated that this type of incident between a teacher and student is a “true

problem” in society. All of this proof is sufficient to show that there is not only a need for

community and statewide deterrence, but other similarly-situated individuals might be deterred from

making the same mistakes as the Defendant if the Defendant were incarcerated. Thus, there is no

basis for disturbing the trial court’s assessment of deterrence in its decision to deny judicial

diversion.

The Defendant claims that the trial court also failed to consider her “numerous positive

character traits” in deciding whether to grant judicial diversion. We disagree. The trial court stated:

[We have] considered . . . the testimony of witnesses; the evidence presented by way

of statements, letters, exhibits; the Presentence Investigation Report; the

psychosexual evaluation report; principles of sentencing; the nature of conduct as

shown by the facts of the offense; the evidence of mitigating and enhancement

factors as presented; statements and arguments of counsel; and the entire record in

this cause.

We conclude that the trial court performed a thorough examination of all the evidence in this case,

and the Defendant has not proven that the trial court abused its discretion when it denied her

application for judicial diversion. Accordingly, the Defendant is not entitled to relief on this issue.

B. Full Probation

The Defendant argues that the trial court erred in denying full probation because the State

did not meet its burden to prove that confinement would be more suitable than the statutory

presumption of alternative sentencing. When a defendant challenges the length, range, or manner

of service of a sentence, it is the duty of this Court to conduct a de novo review on the record with

a presumption that “the determinations made by the court from which the appeal is taken are

correct.” T.C.A. § 40-35-401(d) (2006). As the Sentencing Commission Comments to this section

note, the burden is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-

35-401, Sentencing Comm’n Cmts. This means that if the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, T.C.A. § 40-35-103, we may not disturb the sentence even if a

different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption

does not apply to the legal conclusions reached by the trial court in sentencing a defendant or to the

determinations made by the trial court that are predicated upon uncontroverted facts. State v. Dean,

76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.

App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994).

In conducting a de novo review of a sentence, we must consider: (1) any evidence received

at the trial and/or sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)

the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the

12

offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his

or her own behalf, and (8) the defendant’s potential or lack of potential for rehabilitation or

treatment. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

To meet the burden of establishing suitability for full probation, a defendant must

demonstrate that full probation will subserve the ends of justice and the best interests of both the

public and the defendant. State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. 2001). The following

criteria, while not controlling the discretion of the sentencing court, shall be accorded weight when

deciding the defendant’s suitability for full probation: (1) the nature and circumstances of the

criminal conduct involved; (2) the defendant's potential or lack of potential for rehabilitation; (3)

whether a sentence of full probation would unduly depreciate the seriousness of the offense; and (4)

whether a sentence other than full probation would provide an effective deterrent to others likely to

commit similar crimes. T.C.A. §§ 40-35-103(1)(B), -103(5), -210(b)(4) (2006); see also Blackhurst,

70 S.W.3d at 97.

In this case, the Defendant is eligible for full probation because her sentence is ten years or

less (subject to some statutory exclusions not relevant here). T.C.A. § 40-35-303(a). Although full

probation must be automatically considered by the trial court as a sentencing alternative whenever

the defendant is eligible, “the defendant is not automatically entitled to probation as a matter of law.”

T.C.A. § 40-35-303(b), Sentencing Comm’n Cmts.

The trial court considered the same general factors with respect to the Defendant’s request

for full probation as it did for her request for judicial diversion. The court found that the

circumstances of the offense were particularly shocking, especially given the age difference between

the Defendant and victim and the Defendant’s role as the victim’s teacher. Further, the court stated

that “punishment is necessary to avoid depreciating the seriousness of this offense.”

The Defendant claims that, pursuant to Tennessee Code Annotated section 40-35-102(6), the

Defendant, as a Class E felon, “is presumed to be a favorable candidate for alternative sentencing

options in the absence of evidence to the contrary.” Tennessee Code Annotated section 40-35-103(1)

provides some guidance as to what constitutes “evidence to the contrary.” It states that confinement

is appropriate if: (1) it will “protect society by restraining a defendant who has a long history of

criminal conduct;” (2) it will “avoid depreciating the seriousness of the offense or [will] provide an

effective deterrence to others likely to commit similar offenses;” or (3) “[m]easures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the defendant.” T.C.A.

§ 40-35-103(1)(A)-(c). The Defendant argues that the trial court did not find evidence to the

contrary – in particular, that it did not find that confinement is necessary to protect society, that less

restrictive measures have frequently or recently been applied unsuccessfully to the Defendant, or that

the facts of the offense are especially shocking. Further, the Defendant asserts that the trial court’s

finding of a need for deterrence was based not on proof in the record but rather on a “mere

conclusory opinion of the trial judge.”

Upon review, we conclude that the trial court used sound reasoning when it chose to deny

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full probation. There is evidence in the record to prove that the circumstances of this offense are

such that confinement is necessary to avoid depreciating the seriousness of the offense and that

confinement will provide an effective deterrence to others likely to commit similar offenses. See,

e.g., State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997).

We must, however, modify the terms of the sentence to thirty percent of eighteen months,

which is 162 days (down from 180 days). State v. Sutton mandates such a reduction. 166 S.W.3d

686, 691 (Tenn. 2005) (analyzing Tennessee Code Annotated section 40-35-501(a)(3) and

concluding that defendants with sentences less than two years “have more than a mere hope of

release . . . upon reaching their release eligibility date;” thus, split confinement sentences cannot

require service of more time than what would be required under the release eligibility date.); see

State v. David Wayne Fountain, No. E2004-01226-CCA-R3-CD, 2005 WL 1528244, at *4 (Tenn.

Crim. App., at Knoxville, June 28, 2005).

C. Community Supervision for Life

Both parties agree that the trial court incorrectly sentenced the Defendant to community

supervision for life following the expiration of her eighteen-month sentence, pursuant to Tennessee

Code Annotated section 39-13-524. Statutory rape is not one of the offenses triggering application

of this statutory requirement.6 The State acknowledges that “the judgment form is deficient because

the box indicating that the [D]efendant . . . be placed on community supervision for life is incorrectly

checked.” As such, this clerical error should be corrected on remand through an amended judgment.

In Tennessee, courts may “correct mistakes in judgments, orders, or other parts of the record, and

errors in the record arising from oversight or omission.” Tenn. R. Crim. P. 36. In addition, the

Tennessee Supreme Court has determined that a trial court has the authority to “correct an illegal .

. . sentence at any time, even if it has become final.” State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.

1978). Accordingly, we remand for the trial court to amend the judgment form to reflect the proper

sentence.

III. Conclusion

In accordance with the foregoing authorities and reasoning, we affirm the judgment of the

trial court sentencing the Defendant to eighteen months, however we modify the time to be served

in jail from 180 days to 162 days. We remand for the entry by the trial court of an amended

judgment form to reflect that the Defendant is not to be placed on community supervision for life

and for the appropriate sentence reduction.

_______________________________

ROBERT W. WEDEMEYER, JUDGE

6

Tennessee Code Annotated section 39-13-524 mandates that those convicted of aggravated rape, rape, aggravated

sexual battery, or rape of a child, be sentenced to community supervision for life. T.C.A. § 39-13-524 (2006); see T.C.A.

§§ 39-13-502, -503, -504, -522.

14