State v. Bacon

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 17, 1998
• Docket: 03C01-9708-CR-00356
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JUNE SESSION, 1998 FILED August 17, 1998

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9708-CR-00356 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. JERRY BECK, Judge ROBERT JOSEPH BACON, ) ) (Sentence Revocation) Appellant )

For the Appellant: For the Appellee:

Terry L. Jordan John Knox Walkup Asst. Public Defender Attorney General and Reporter P. O. Box 839 Blountville, TN 37617 Clinton J. Morgan Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Stephen M. Wallace Nashville, TN 37243-0493 District Public Defender

H. Greeley Wells, Jr. District Attorney General

Teresa M. Smith Asst. District Attorney General P. O. Box 526 Blountville, TN 37617

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Robert Joseph Bacon, seeks review of the Sullivan County

Criminal Court’s order revoking the appellant’s previously imposed non-incarcerative

status following his conviction for rape. Specifically, he contends that the evidence

at the revocation hearing failed to support the alleged violation by a preponderance

of the evidence.

After consideration of the record before us, we affirm the judgment of the trial

court.

Background

On April 17, 1996, a jury found the appellant guilty of rape, a class B felony.

Although the focus of this appeal challenges the sufficiency of the revocation

evidence, our first task is to determine the manner of service of the sentence

imposed by the trial court following the appellant’s conviction for rape.1 The

judgment of conviction, dated May 28, 1996, reflects that the Honorable Frank

Slaughter imposed an eight year sentence to both the “TDOC” and the “Community

Based Alternative: John R. Hay House.” The judgment further provides “Defendant

placed in Hay House for evaluation. Case to be reviewed on 8/30/96.” On August

30, 1996, the trial court ordered a split confinement of the eight year sentence with

one year to be served at the John R. Hayhouse. On September 3, 1996, the trial

court transferred the appellant’s supervision to the Alternative Community

1 The appellant appealed his conviction and the State filed a cross-appeal, alleging that the trial court improperly sentenced the appellant to the Community Corrections program. Judge Welles, writing on behalf of a unanimous panel, affirmed the appellant’s conviction for rape, but rem anded this case for a dete rmina tion as to the exact m anner o f senten ce imp osed. State v. Bacon, No. 03C01-9608-CR-00308 (Tenn. Crim. App. at Knoxville, Jan. 8, 1998). In so holding, Judge W elles obs erved, “W hat the se ntence was rem ains a m ystery. The ju dgm ent form reflects that the Defendant was sentenced to eight years in Community Corrections and specifies an evaluation in Hay House.” Bacon, No. 03C01-9608-CR-00308. We note that the present appeal has reac hed this c ourt p rior to the fin al sen tenc ing de term inatio n of th e app ellant ’s dire ct ap pea l.

2 Corrections Program for the remainder of the eight year sentence. We glean from

the record that the John R. Hayhouse, Inc., also referred to as the Hay House, is a

Community Corrections treatment center located in Kingsport. See Tenn. Code

Ann. § 40-36-302(a)(2) (1990); see, e.g., State v. Boston, 938 S.W.2d 435, 437

(Tenn. Crim. App. 1996); State v. Hale, No. 03C01-9411-CR-00404 (Tenn. Crim.

App. at Knoxville, Aug. 4, 1995). To add to the confusion, at the revocation

proceeding, both the State and defense counsel referred to the appellant’s sentence

status as a “probated sentence.”2

In February 1997, prior to resolution of the appellant’s direct appeal of his

conviction, the appellant met Tiffany Goff, a twenty year old East Tennessee State

University student, at an aerobics class held at the school gym. The appellant and

Ms. Goff exchanged telephone numbers and agreed to make plans to play

racquetball. Ms. Goff later decided to cancel her plans with the appellant after his

behavior had changed during an initial telephone conversation. The appellant

continued to telephone Ms. Goff. On one occasion, she returned the phone call, but

the appellant was not at home. Ms. Goff testified that during these initial

conversations with the appellant, she commented that she was having problems

with her boyfriend, to which the appellant asked her if her “boyfriend wanted too

much sex.” After this incident, the appellant continued his visits to the aerobics

class, but did not participate in the exercise. Rather, the appellant would talk with

Ms. Goff prior to class. During one of their conversations, the appellant stated, “if it

seems like I’m flirting with you, I am.” The appellant also showed up at the gym

when Ms. Goff had planned to play racquetball with Angie “A.C.” Carraway, the

aerobics instructor. While the two attempted to play racquetball, the appellant “kept

looking in the windows “ despite their attempts to make him “go away.” The

2 Rega rdless o f whethe r we con strue the senten ce as b eing one of Com mun ity Corrections or probation, our analysis remains the same as our supreme court has equated a Comm unity Corrections sentence with one of probation in terms of the same principles being applicab le when d eciding w hether a revoca tion of the s entenc e was p roper. State v. Parker, No. 02C01-9111-CC-00245 (Tenn. Crim. App. at Jackson, Feb. 9, 1994) (citing State v. Harkins, 811 S.W .2d 79, 83 (Tenn. 1991)).

3 appellant then walked onto the court where he and “A.C.” got involved in an

argument. The appellant continued to telephone Ms. Goff, approximately twenty

phone calls a week. This behavior continued for three months. Ms. Goff testified

that the appellant’s behavior caused her to fear for her own safety. Specifically, she

explained that “he kept acting weird, like when he’d get mad if you wouldn’t do

anything with him. . . . he just seemed real aggressive when you’d say no to him.”

The appellant’s behavior was reported to the police and he was subsequently

arrested on a charge of stalking.

On May 6, 1997, Community Corrections case officer Brian Brummett filed an

affidavit of violation of Community Corrections supervision alleging that the appellant

had violated “Rule # 1 of the Community Corrections order” by committing the

offense of stalking. 3 A revocation hearing was held on July 14, 1997, at which time

the appellant entered a plea of not guilty to the offense of stalking. On July 25,

1997, the trial court found that the proof supported the alleged violation by a

preponderance of the evidence and ordered that the appellant serve the remainder

of his eight year sentence in the Department of Correction. The appellant filed his

notice of appeal of this revocation on August 21, 1997.

Analysis

In his only issue presented for our review, the appellant contends that the trial

court erroneously found the proof sufficient to support a finding that the appellant

3 The a ffidavit provid ed, in part: Rule #1 To Wit: “I will obey the laws of the United States, or any state in which I may be as well as any mu nicipal ordin ances .”

On or a bout 4/30 .97, Eas t Tenn essee State Un iversity (ETS U) Pub lic Safety Officer Marlys Tester swore to an Affidavit of Complaint alleging that the offender com mitte d the offe nse of sta lking - ET SU C ase # 970 430 084 9 in Jo hns on C ity, Washington County Tennessee. A $10,000 Bond was issued. The Case is set for trial on 6/3 /97 in W ashingto n Cou nty Gene ral Sess ions Co urt.

4 violated a condition of his Community Corrections sentence. Specifically, he asserts

that the evidence failed to establish that the appellant’s actions caused Ms. Goff to

reasonably fear assault or bodily injury or that the appellant “followed” Ms. Goff as

defined by the statute.

“A person commits the offense of stalking who intentionally and repeatedly

follows or harasses another person in such a manner as would cause that person to

be in reasonable fear of being assaulted, suffering bodily injury or death.” Tenn.

Code Ann. § 39-17-315 (1997). The offense further defines the term "follows” to

mean “maintaining a visual or physical proximity over a period of time to a specific

person in such a manner as would cause a reasonable person to have a fear of an

assault, bodily injury, or death.” Tenn. Code Ann. § 39-17-315 (a)(2)(A).

In a revocation proceeding, the State bears the burden of establishing the

violation alleged in the notice by a preponderance of the evidence. State v. Harkins,

811 S.W.2d 79, 82 (Tenn. 1991). The trial court retains the discretion, including

resolving conflicts in the evidence and judging the credibility of the witnesses, to

determine whether the accused has violated the conditions of the Community

Corrections sentence. Harkins, 811 S.W.2d at 82; State v. Mitchell, 810 S.W.2d

733, 735 (Tenn. Crim. App. 1991). If the evidence is sufficient to support a violation

of the condition and the trial court, exercising its discretion, decides to revoke the

Community Corrections sentence, the court must place its findings of fact and the

reasons for the revocation on the record. See State v. Hardy, No. 02C01-9503-CC-

00074 (Tenn. Crim. App. at Jackson, Feb. 7, 1996). On appeal, the reviewing court

must affirm the trial court’s decision unless “the record contains no substantial

evidence to support the conclusion of the trial [court] that a violation of the condition

. . . has occurred.” Harkins, 811 S.W.2d at 82.

5 In the present case, we conclude that the record contains sufficient evidence

to support the trial court’s conclusion. The trial court properly accredited the

testimony of Ms. Goff and Angie “A.C.” Carraway and rejected the appellant’s

version of the events. The court found:

The Court, therefore, is of the opinion that a reasonable person could fear that which is required by the statute. The young lady was, although young, was a college student. The actions were great. The Court first thought the parties - - - it started out, they were more or less friendly . . . where they do start out friendly, then they get - - it becomes an overbearing type relationship. ... . . . [T]he Court’s of the opinion [that] the State has made out [by a] preponderance [that] the Defendant has violated the terms and conditions of his probation. He’ll be required to serve his sentence.

We agree that the appellant’s actions constituted “following” within the definition

prescribed by the statute. Moreover, a reasonable person in Ms. Goff’s position

would have been fearful or apprehensive of bodily harm or injury to their person

considering the appellant’s behavior. We conclude that the record contains ample

evidence to support the trial court's finding that the appellant violated Rule #1 of the

Community Corrections order. The record reflects that the trial court made a

conscientious decision in revoking the sentence and the court placed its findings

and conclusions on the record. Because we find no abuse of discretion, the

judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

__________________________________ JOHN H. PEAY, Judge

__________________________________ JOSEPH M. TIPTON, Judge