IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 September 26, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00399 ) Appellee, ) SULLIVAN COUNTY ) ) V. ) ) HON. R. JERRY BECK, JUDGE DAVID WILLIAM SMITH, ) ) (AGGRAVATED BURGLARY, Appellant. ) THEFT OVER $1,000.00)
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY WEDDINGTON JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 200 Seventh Street Bristol, TN 37620 MARVIN E. CLEMENTS, JR. Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243-0943
H. GREELEY WELLS, JR. District Attorney General
JOSEPH EUGENE PERRIN Assistant District Attorney General P.O. Box 526 Blountville, TN 37617-0526
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Defendant, David W illiam Smith, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. On August 30, 1994,
Defendant entered pleas of guilty to three charges of aggravated burglary and
three charges of theft over $1,000. Defendant received four years on each
conviction to run concurrently, and a probation order was entered that same day.
Defendant’s probation was revoked on February 15, 1995, and he was ordered
to serve his sentence on Community Corrections. On July 14, 1995, an Order
was entered returning Defendant to probationary status subject to the Community
Corrections Supervision Order. On December 1, 1995, another arrest warrant
was issued for Defendant’s violation of probation. Following a probation hearing
in the Circuit Court of Sullivan County, Defendant’s probation was revoked and
he was ordered to serve the sentence in confinement. In his sole issue on
appeal, the Defendant argues that the trial court abused its discretion in revoking
Defendant’s probation and ordering him to serve his sentence. We affirm the
judgment of the trial court.
On November 28, 1995, at approximately 10:15 p.m., Officers Dennis
Banks and Fred Overby responded to 2207 Anderson Street in Bristol,
Tennessee to pick up a runaway juvenile. W hile placing her in custody they were
met by Defendant, who was the juvenile’s boyfriend. The Defendant had words
with the officers and made threats that he could handle all of them due to his
karate knowledge. He said that he could “take them out anytime he wanted to.”
The officers left with the female juvenile and drove to the location of 1301
Anderson Street where they stopped to attend to her medical needs. The
-2- Defendant approached to check on his girlfriend, and again threatened the
officers with bodily harm. At this point Officer Overby called for back up.
Officers Lloyd Heaton, Steve Terry and Keith Feathers responded to the call.
Officers Feathers and Terry escorted Defendant away from the scene.
Defendant told these officers that he had driven to the location and that his car
was parked in a nearby alley.
A few minutes later, as the officers were standing near a patrol car on the
right side of the street, Officer Terry saw a car approach. The car turned off its
headlights, accelerated, and then swerved to the right towards the group of
officers. The car narrowly missed the officers and then sped away. Some of the
officers pursued the vehicle until it struck two utility poles and stopped. The
driver got out of the vehicle and fled on foot. The license plate on the car was
registered to the Defendant. He was ultimately apprehended near the scene of
the wreck a short time later. Defendant had to be chased on foot after he was
recognized by an officer.
Defendant was charged with five counts of Attempted First Degree Murder
in relation to the events on November 28, 1995. A Violation of Probation warrant
was issued on Decem ber 1, 1995, and Defendant was arrested the sam e day.
The probation violation alleged: (1) Violation of Rule One - failure to obey the law
by the arrest for the offenses of Attempted First Degree Murder (five counts); (2)
Violation of Rule Two - failure to immediately report the new arrest; (3) Violation
of Rule Seven - drinking to excess in relation to the events of November 28,
1995; and (4) Violation of Rule Eight - failure to pay fees for the months of July
1995 through November 1995.
-3- At trial on the attempted murder counts, the jury acquitted the Defendant
of Attempt to Commit First Degree Murder, five counts, but reached an impasse
on all lesser included offenses which were still pending at the time of the
revocation hearing. The drinking to excess violation was dismissed and the
court made no finding concerning the failure to pay fines or failure to report new
arrest charges. The trial judge did find sufficient evidence that the Defendant
was the person driving the car that almost hit the officers, thus violating Rule
One, failure to obey the law.
Both the granting and denial of probation rest in the sound discretion of the
trial judge. State v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991). In
determining whether or not to revoke the probation, the trial judge need not find
beyond a reasonable doubt that a violation of the terms of probation has
occurred. The existence of a violation need only be supported by a
preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1990).
The trial judge must, however, adduce sufficient evidence during the
probation revocation hearing to allow him to make an intelligent decision.
Mitchell, 810 S.W.2d at 735. The determination made by the trial court, if made
with conscientious judgment, is given the weight of a jury verdict. Stamps v.
State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm to appeal denied, id.
(Tenn. 1981).
W hen a probation revocation is challenged, the appellate courts have a
limited scope of review. For an appellate court to be warranted in finding a trial
judge erred in determining that a violation has occurred, it must be established
-4- that the record contains no substantial evidence to support the conclusion of the
trial judge. State v. Harkins, 811 S.W .2d 79, 82 (Tenn. 1991). If the violation is
so supported by the record, the judgment of the trial court revoking probation will
not be disturbed on appeal unless is appears that the trial court acted arbitrarily
or otherwise abused its discretion. State v. W illiamson, 619 S.W .2d 145, 146
(Tenn. Crim. App.), perm to appeal denied, id. (Tenn. 1981).
Although the evidence presented at the hearing was mostly circumstantial,
it was sufficient to allow the trial court to make a conscientious and intelligent
finding of a violation of probation by a preponderance of the evidence. The
Defendant threatened the officers by making repeated comments about “taking
them out,” evidently in response to his girlfriend being taken into custody.
Defendant approached the officers again after they stopped on the side of the
road to attend to his girlfriend’s medical needs, and once again, Defendant acted
in an extremely threatening manner towards the officers. After being escorted
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 September 26, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00399 ) Appellee, ) SULLIVAN COUNTY ) ) V. ) ) HON. R. JERRY BECK, JUDGE DAVID WILLIAM SMITH, ) ) (AGGRAVATED BURGLARY, Appellant. ) THEFT OVER $1,000.00)
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY WEDDINGTON JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 200 Seventh Street Bristol, TN 37620 MARVIN E. CLEMENTS, JR. Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243-0943
H. GREELEY WELLS, JR. District Attorney General
JOSEPH EUGENE PERRIN Assistant District Attorney General P.O. Box 526 Blountville, TN 37617-0526
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Defendant, David W illiam Smith, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. On August 30, 1994,
Defendant entered pleas of guilty to three charges of aggravated burglary and
three charges of theft over $1,000. Defendant received four years on each
conviction to run concurrently, and a probation order was entered that same day.
Defendant’s probation was revoked on February 15, 1995, and he was ordered
to serve his sentence on Community Corrections. On July 14, 1995, an Order
was entered returning Defendant to probationary status subject to the Community
Corrections Supervision Order. On December 1, 1995, another arrest warrant
was issued for Defendant’s violation of probation. Following a probation hearing
in the Circuit Court of Sullivan County, Defendant’s probation was revoked and
he was ordered to serve the sentence in confinement. In his sole issue on
appeal, the Defendant argues that the trial court abused its discretion in revoking
Defendant’s probation and ordering him to serve his sentence. We affirm the
judgment of the trial court.
On November 28, 1995, at approximately 10:15 p.m., Officers Dennis
Banks and Fred Overby responded to 2207 Anderson Street in Bristol,
Tennessee to pick up a runaway juvenile. W hile placing her in custody they were
met by Defendant, who was the juvenile’s boyfriend. The Defendant had words
with the officers and made threats that he could handle all of them due to his
karate knowledge. He said that he could “take them out anytime he wanted to.”
The officers left with the female juvenile and drove to the location of 1301
Anderson Street where they stopped to attend to her medical needs. The
-2- Defendant approached to check on his girlfriend, and again threatened the
officers with bodily harm. At this point Officer Overby called for back up.
Officers Lloyd Heaton, Steve Terry and Keith Feathers responded to the call.
Officers Feathers and Terry escorted Defendant away from the scene.
Defendant told these officers that he had driven to the location and that his car
was parked in a nearby alley.
A few minutes later, as the officers were standing near a patrol car on the
right side of the street, Officer Terry saw a car approach. The car turned off its
headlights, accelerated, and then swerved to the right towards the group of
officers. The car narrowly missed the officers and then sped away. Some of the
officers pursued the vehicle until it struck two utility poles and stopped. The
driver got out of the vehicle and fled on foot. The license plate on the car was
registered to the Defendant. He was ultimately apprehended near the scene of
the wreck a short time later. Defendant had to be chased on foot after he was
recognized by an officer.
Defendant was charged with five counts of Attempted First Degree Murder
in relation to the events on November 28, 1995. A Violation of Probation warrant
was issued on Decem ber 1, 1995, and Defendant was arrested the sam e day.
The probation violation alleged: (1) Violation of Rule One - failure to obey the law
by the arrest for the offenses of Attempted First Degree Murder (five counts); (2)
Violation of Rule Two - failure to immediately report the new arrest; (3) Violation
of Rule Seven - drinking to excess in relation to the events of November 28,
1995; and (4) Violation of Rule Eight - failure to pay fees for the months of July
1995 through November 1995.
-3- At trial on the attempted murder counts, the jury acquitted the Defendant
of Attempt to Commit First Degree Murder, five counts, but reached an impasse
on all lesser included offenses which were still pending at the time of the
revocation hearing. The drinking to excess violation was dismissed and the
court made no finding concerning the failure to pay fines or failure to report new
arrest charges. The trial judge did find sufficient evidence that the Defendant
was the person driving the car that almost hit the officers, thus violating Rule
One, failure to obey the law.
Both the granting and denial of probation rest in the sound discretion of the
trial judge. State v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991). In
determining whether or not to revoke the probation, the trial judge need not find
beyond a reasonable doubt that a violation of the terms of probation has
occurred. The existence of a violation need only be supported by a
preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1990).
The trial judge must, however, adduce sufficient evidence during the
probation revocation hearing to allow him to make an intelligent decision.
Mitchell, 810 S.W.2d at 735. The determination made by the trial court, if made
with conscientious judgment, is given the weight of a jury verdict. Stamps v.
State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm to appeal denied, id.
(Tenn. 1981).
W hen a probation revocation is challenged, the appellate courts have a
limited scope of review. For an appellate court to be warranted in finding a trial
judge erred in determining that a violation has occurred, it must be established
-4- that the record contains no substantial evidence to support the conclusion of the
trial judge. State v. Harkins, 811 S.W .2d 79, 82 (Tenn. 1991). If the violation is
so supported by the record, the judgment of the trial court revoking probation will
not be disturbed on appeal unless is appears that the trial court acted arbitrarily
or otherwise abused its discretion. State v. W illiamson, 619 S.W .2d 145, 146
(Tenn. Crim. App.), perm to appeal denied, id. (Tenn. 1981).
Although the evidence presented at the hearing was mostly circumstantial,
it was sufficient to allow the trial court to make a conscientious and intelligent
finding of a violation of probation by a preponderance of the evidence. The
Defendant threatened the officers by making repeated comments about “taking
them out,” evidently in response to his girlfriend being taken into custody.
Defendant approached the officers again after they stopped on the side of the
road to attend to his girlfriend’s medical needs, and once again, Defendant acted
in an extremely threatening manner towards the officers. After being escorted
away from the scene, Defendant told the officers that his car was in a nearby
alley, and a few moments later a car accelerated and then swerved towards the
officers in an attempt to strike them. The officers pursued the car until it wrecked.
It was discovered that the license plate on the car was registered to the
Defendant. A few m inutes later, the Defendant was apprehended near the scene
where the car wreck occurred.
The trial court made the following findings: “[t]he act, if the defendant
committed it, would I think constitute a violation of the defendant’s condition to
probation because such act would be unlawful, irregardless of the degree of the
offense involved. The Court is aware that we have had a jury trial on that
-5- offense. The jury did reach a finding of not guilty of attempt to commit first
degree murder, a multiple count involving the officers and they basically had a
hung jury on the lesser included offense. But in this hearing, this Court s[i]ts as
finder of fact.” Later in its ruling from the bench, the trial court stated that it found
beyond a reasonable doubt (while recognizing that a preponderance of the
evidence was all that was necessary) that Defendant was the driver of the vehicle
that almost struck the officers.
There was substantial evidence supporting the trial court’s conclusion that
Defendant was the driver of the car. The trial court properly found that the
Defendant had engaged in criminal activity constituting a violation of a condition
of Defendant’s probation. This issue is without merit. W e affirm the judgment
of the trial court.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID H. W ELLES, Judge
___________________________________ JOHN K. BYERS, Senior Judge
-6-