IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1998 SESSION September 11, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9708-CC-00369 Appellee, ) ) Maury County v. ) ) Honorable Jim T. Hamilton, Judge SCOTT ALLAN BYTWERK, ) ) (Probation Revocation) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Reporter 128 North Second Street 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0493
OF COUNSEL: Janis L. Turner Assistant Attorney General Shara A. Flacy 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 128 North Second Street Pulaski, TN 38478 T. Michael Bottoms District Attorney General P. O. Box 459 Lawrenceburg, TN 38464-0459
Lawrence R. Nickell, Jr. Assistant District Attorney General P. O. Box 459 Lawrenceburg, TN 38464-0459
OPINION FILED: ____________________________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION The defendant, Scott Allan Bytwerk, appeals as of right from a ruling of the Maury
County Circuit Court revoking his post-plea diversion placement. The defendant complains
the trial court erred in revoking his post-plea diversion based upon the evidence heard at
the revocation hearing. After an appropriate review of the record, the briefs submitted by
the parties, and the law governing the issue presented for review, it is the opinion of this
Court that the judgment of the trial court is affirmed.
HISTORY
On March 5, 1997, the defendant was convicted in the General Sessions Court of
Maury County for simple assault and allowing dogs to run at large. On March 7, 1997, the
defendant appealed the convictions to the Maury County Circuit Court demanding a jury
trial. Then began the turbulent relationship between the defendant, his next-door
neighbors, and the Maury County Circuit Court. On April 3, 1997, the State believed it
necessary to file a motion requesting that certain conditions be placed on the defendant’s
appearance bond, such as that the defendant’s farm animals be confined to his property
and not trespass onto the property of his neighbors. As was expected, the defendant, in
the eyes of the State, violated the conditions of bail release and the trial court revoked the
defendant’s appearance bond and ordered that all of the defendant’s animals be
destroyed. Later, the trial court permitted the animals to be sold in lieu of destruction. As
part of the revocation order, the defendant was ordered to undergo a psychiatric
examination.
On May 15, 1997, the defendant, through his attorney and the State, applied for
post-plea diversion. The trial court so ordered judicial diversion for a period of eleven
months and twenty-nine days with the condition the defendant would remain in jail pending
the completion of the mental examination and the trial court’s review of the results.
Further, the defendant was to have no contact with the neighbors. On July 21, 1997, the
State moved to revoke the defendant’s judicial diversion and the trial court set a hearing
2 for July 22, 1997. Based on the testimony in this record and the history of this case, the
trial court revoked the defendant’s judicial diversion and reinstated the defendant’s original
sentence.
REVOCATION HEARING
The State called Mr. Cregg Harris, the defendant’s next-door neighbor, in support
of the motion to revoke diversion. Mr. Harris related three (3) incidents where he believed
the defendant violated the trial court’s order. The first incident occurred when the
defendant wrote on his window or put up a sign that read “Liar, Liar.” The Harrises ignored
the words. The second incident was when Mr. Harris was driving his vehicle along his
property line and observed the defendant feeding some animals. The defendant started
walking towards Mr. Harris’s vehicle, beating his fist in his hand. Mr. Harris pulled off and
the defendant quit approaching the fence. The third incident was when Mr. Harris’s
stepson and friend were playing in the yard with a dog. The defendant called the dog to
his property and the dog has not been seen since. Also, Mr. Harris observed the
defendant with new animals in contradiction to the trial court’s order. Mr. Harris admitted
none of the animals had ever entered his property, nor had the defendant come on Mr.
Harris’s property.
Mrs. Carol Harris related to the trial court that on July 21, 1997 she received a
phone call from a man who said something to the effect, “Jesus saves those that confess
their sins.” Mrs. Harris panicked and hung up the phone. Later that afternoon, Mrs. Harris
observed something written in the defendant’s window facing their home, a sign saying
“Jesus saves, Romans 10:9" and “Ask him.” Mrs. Harris admitted she could not identify
the voice of the caller. Also, Mrs. Harris testified she was anxious about the defendant
based on past incidents.
The defendant testified in his own behalf as well as Mr. William Brisco and the
defendant’s father, Mr. Jerry Bytwerk. Mr. Brisco, employed at Columbia State Community
3 College, advised the trial court he would permit the defendant to stay at his home for a
short period of time and would assist the defendant. Mr. Brisco admitted he advised the
defendant to put up the “Jesus Saves” sign and the one that said “Liar, Liar.” Mr. Brisco
stated, “my feeling was that that was a positive sign out of the Bible rather than a criticism
of ‘Liar, Liar’ . . . it was a mistake for me to advise him that, but I did.”
Mr. Jerry Bytwerk, the defendant’s father, advised the trial court he planned to sell
the property. Also, his son had agreed not to return to the property. Mr. Bytwerk admitted
he and his wife had had problems with their son in the past, even to the extent of obtaining
a no contact court order against the defendant. The witness agreed there remained
approximately 50 poultry, turkeys, geese, pheasants, and ducks on the property.
The defendant advised the trial court he did not wish to live on the property because
the Harrises harassed him and gave him no peace whatsoever. The defendant testified,
“I have never wanted to have anything to do with the Harris’. I just wanted them to be my
friends at first and then they didn’t want me living there and so they’ve tried to move me
out and they’ve succeeded.” The defendant agreed to never go on the road where the
Harrises live. As to the signs, the defendant stated, “those signs that are in my windows
are to say positive things. They’re not to be destructive or subliminal--I don’t know what
they said.”
Based on this evidence, the trial court found the defendant violated the conditions
of the no contact order as well as the post-plea diversion agreement.
The standard by which we review a revocation of judicial diversion is abuse of
discretion.
“In order for a reviewing Court to be warranted in finding an abuse of discretion in
a probation revocation hearing, it must be established that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
4 conditions of probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
We also note that the trial court was entitled to revoke probation upon a finding by
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1998 SESSION September 11, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9708-CC-00369 Appellee, ) ) Maury County v. ) ) Honorable Jim T. Hamilton, Judge SCOTT ALLAN BYTWERK, ) ) (Probation Revocation) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Reporter 128 North Second Street 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0493
OF COUNSEL: Janis L. Turner Assistant Attorney General Shara A. Flacy 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 128 North Second Street Pulaski, TN 38478 T. Michael Bottoms District Attorney General P. O. Box 459 Lawrenceburg, TN 38464-0459
Lawrence R. Nickell, Jr. Assistant District Attorney General P. O. Box 459 Lawrenceburg, TN 38464-0459
OPINION FILED: ____________________________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION The defendant, Scott Allan Bytwerk, appeals as of right from a ruling of the Maury
County Circuit Court revoking his post-plea diversion placement. The defendant complains
the trial court erred in revoking his post-plea diversion based upon the evidence heard at
the revocation hearing. After an appropriate review of the record, the briefs submitted by
the parties, and the law governing the issue presented for review, it is the opinion of this
Court that the judgment of the trial court is affirmed.
HISTORY
On March 5, 1997, the defendant was convicted in the General Sessions Court of
Maury County for simple assault and allowing dogs to run at large. On March 7, 1997, the
defendant appealed the convictions to the Maury County Circuit Court demanding a jury
trial. Then began the turbulent relationship between the defendant, his next-door
neighbors, and the Maury County Circuit Court. On April 3, 1997, the State believed it
necessary to file a motion requesting that certain conditions be placed on the defendant’s
appearance bond, such as that the defendant’s farm animals be confined to his property
and not trespass onto the property of his neighbors. As was expected, the defendant, in
the eyes of the State, violated the conditions of bail release and the trial court revoked the
defendant’s appearance bond and ordered that all of the defendant’s animals be
destroyed. Later, the trial court permitted the animals to be sold in lieu of destruction. As
part of the revocation order, the defendant was ordered to undergo a psychiatric
examination.
On May 15, 1997, the defendant, through his attorney and the State, applied for
post-plea diversion. The trial court so ordered judicial diversion for a period of eleven
months and twenty-nine days with the condition the defendant would remain in jail pending
the completion of the mental examination and the trial court’s review of the results.
Further, the defendant was to have no contact with the neighbors. On July 21, 1997, the
State moved to revoke the defendant’s judicial diversion and the trial court set a hearing
2 for July 22, 1997. Based on the testimony in this record and the history of this case, the
trial court revoked the defendant’s judicial diversion and reinstated the defendant’s original
sentence.
REVOCATION HEARING
The State called Mr. Cregg Harris, the defendant’s next-door neighbor, in support
of the motion to revoke diversion. Mr. Harris related three (3) incidents where he believed
the defendant violated the trial court’s order. The first incident occurred when the
defendant wrote on his window or put up a sign that read “Liar, Liar.” The Harrises ignored
the words. The second incident was when Mr. Harris was driving his vehicle along his
property line and observed the defendant feeding some animals. The defendant started
walking towards Mr. Harris’s vehicle, beating his fist in his hand. Mr. Harris pulled off and
the defendant quit approaching the fence. The third incident was when Mr. Harris’s
stepson and friend were playing in the yard with a dog. The defendant called the dog to
his property and the dog has not been seen since. Also, Mr. Harris observed the
defendant with new animals in contradiction to the trial court’s order. Mr. Harris admitted
none of the animals had ever entered his property, nor had the defendant come on Mr.
Harris’s property.
Mrs. Carol Harris related to the trial court that on July 21, 1997 she received a
phone call from a man who said something to the effect, “Jesus saves those that confess
their sins.” Mrs. Harris panicked and hung up the phone. Later that afternoon, Mrs. Harris
observed something written in the defendant’s window facing their home, a sign saying
“Jesus saves, Romans 10:9" and “Ask him.” Mrs. Harris admitted she could not identify
the voice of the caller. Also, Mrs. Harris testified she was anxious about the defendant
based on past incidents.
The defendant testified in his own behalf as well as Mr. William Brisco and the
defendant’s father, Mr. Jerry Bytwerk. Mr. Brisco, employed at Columbia State Community
3 College, advised the trial court he would permit the defendant to stay at his home for a
short period of time and would assist the defendant. Mr. Brisco admitted he advised the
defendant to put up the “Jesus Saves” sign and the one that said “Liar, Liar.” Mr. Brisco
stated, “my feeling was that that was a positive sign out of the Bible rather than a criticism
of ‘Liar, Liar’ . . . it was a mistake for me to advise him that, but I did.”
Mr. Jerry Bytwerk, the defendant’s father, advised the trial court he planned to sell
the property. Also, his son had agreed not to return to the property. Mr. Bytwerk admitted
he and his wife had had problems with their son in the past, even to the extent of obtaining
a no contact court order against the defendant. The witness agreed there remained
approximately 50 poultry, turkeys, geese, pheasants, and ducks on the property.
The defendant advised the trial court he did not wish to live on the property because
the Harrises harassed him and gave him no peace whatsoever. The defendant testified,
“I have never wanted to have anything to do with the Harris’. I just wanted them to be my
friends at first and then they didn’t want me living there and so they’ve tried to move me
out and they’ve succeeded.” The defendant agreed to never go on the road where the
Harrises live. As to the signs, the defendant stated, “those signs that are in my windows
are to say positive things. They’re not to be destructive or subliminal--I don’t know what
they said.”
Based on this evidence, the trial court found the defendant violated the conditions
of the no contact order as well as the post-plea diversion agreement.
The standard by which we review a revocation of judicial diversion is abuse of
discretion.
“In order for a reviewing Court to be warranted in finding an abuse of discretion in
a probation revocation hearing, it must be established that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
4 conditions of probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
We also note that the trial court was entitled to revoke probation upon a finding by
the preponderance of the evidence that the defendant violated several conditions of
probation. T.C.A. § 40-35-311(d).
Since this hearing concerned a post-plea diversion agreement, this Court will
assume it was granted under the requirements of T.C.A. § 40-35-313(a). Thus, the
standard in reviewing a revocation of judicial diversion would be an abuse of discretion.
The trial court in its ruling for revoking the post-plea diversion stated:
All right, Mr. Bytwerk, I’m going to revoke your post-plea diversion for these reasons. I think you clearly have violated the no contact order. I don’t know what goes through your mind. I’m not a psychiatrist. I probably should be, but I’m not. I don’t know what you think. But, I mean, the actions you’ve taken could be for one purpose and one purpose only, and that’s to contact these people--not physically, but in a way maybe even more devious than physical contact. You don’t pay any attention to anything that I say, anything that I suggest to you.
In sum, we conclude that the record on appeal clearly justifies the trial court’s finding
that the defendant violated the conditions of his post-plea diversion. The judgment of the
trial court is affirmed.
_____________________________________ L. T. LAFFERTY, SPECIAL JUDGE
5 CONCUR:
________________________________ JOHN H. PEAY, JUDGE
________________________________ THOMAS T. WOODALL, JUDGE