IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
February 15, 2000
JANUARY 2000 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # E1999-00409-CCA-R3-CD
Appellee, * KNOX COUNTY
VS. * Hon. Richard R. Baumgartner, Judge
ANDRE L. LEE, * (Revocation of Probation)
Appellant. *
For Appellant: For Appellee:
Mark E. Stephens Paul G. Summers
District Public Defender Attorney General and Reporter
Paula R. Voss Peter M. Coughlan
1209 Euclid Avenue Assistant Attorney General
Knoxville, TN 37921 Criminal Justice Division
(on appeal) 425 Fifth Avenue North
Nashville, TN 37243-0493
Randall Jay Kilby
Assistant Public Defender Randall E. Nichols
1209 Euclid Avenue District Attorney General
Knoxville, TN 37921
(at trial) Marsha Selecman
and
Anne S. Crisler
Asst. District Attorneys General
City-County Building
Knoxville, TN 37902
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Andre L. Lee, appeals the trial court's decision to
revoke probation and to require that the remainder of his sentence be served in the
Department of Correction. The single issue presented for review is whether the trial
court abused its discretion by revoking his probation.
We find no error and affirm the judgment of the trial court.
On January 31, 1999, the defendant entered a guilty plea to arson.
Tenn. Code Ann. § 39-14-301. The trial court originally imposed a sentence of four
years, one of which was to be served in the Knox County Jail and the balance of
which was to be served on intensive probation. After service of some jail time, the
defendant filed a motion to reconsider and, on April 21, 1997, the trial court placed
the defendant on probation. The probation was conditioned upon the defendant's
compliance with the law and exhibition of conduct consistent with good citizenship.
Seven months later, the state filed a warrant for the violation of probation as follows:
(1) failure to report to the probation officer; (2) failure to maintain full employment;
(3) failure to inform the probation officer of changes in employment; (4) curfew
violations; (5) failure to pay court costs; and (6) failure to pay fees. On December 4,
1998, the trial court dismissed the petition and returned the defendant to intensive
probation. A little over two weeks later, on December 21, 1999, the state filed
another warrant alleging that the defendant violated the law by committing an
aggravated assault.
At the revocation hearing, the defendant's ex-girlfriend, Rhonda Lee
Burkhart, testified that on December 19, 1998, she made bail for the defendant, who
had been jailed for failure to pay child support. She testified that after his release,
an argument ensued and the defendant began to choke her while she was driving
her automobile. She recalled that during the altercation, she stopped and fled to the
trunk of her car to find "anything to get him off me." Ms. Burkhart contended that the
defendant then grabbed her, punched her, and choked her. She stated that when
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the defendant threatened to kill her, she struck him once or twice with a gas can she
had found in the trunk. Ms. Burkhart testified that when the struggle ended, she
threatened to call the police and the defendant again grabbed her. She was able to
get away, however, and escaped to a nearby K-Mart, where she called 911. Ms.
Burkhart claimed to have bruises on her neck, back, and ribs and "a busted lip."
Amanda Huber, an employee at the K-Mart on Kingston Pike in
Knoxville, also testified at the probation revocation hearing. She stated that on the
night in question, she saw the defendant grab Ms. Burkhart as she tried to run away
from him. She also overheard the defendant threaten to kill Ms. Burkhart as she
phoned the police and saw him force her head against a store window. Ms. Huber
recalled that the defendant left the store when he realized there was a witness to the
incident.
The defendant testified that when Ms. Burkhart arrived at the jail to
arrange his release, she had been drinking "tall cans of beer." He claimed that she
initiated the altercation by "poking me in the side of my head" and that he responded
by pushing her hand away. The defendant contended that Ms. Burkhart then struck
him and he merely defended himself. He explained that when she went to the trunk
of the car, he believed she was looking for a weapon. The defendant insisted that
he merely defended himself when Ms. Burkhart grabbed a gasoline container and
tried to douse him with the contents.
The trial court, while acknowledging that the evidence was disputed,
accredited the testimony of the eyewitness who had observed the defendant grab
Ms. Burkhart and "bang her head against the glass . . . ." The trial court calculated
216 days of jail credit for the defendant as of the date of revocation.
When a probation revocation is challenged, this court has a limited
scope of review. If the trial judge finds by a preponderance of the evidence "that the
defendant has violated the conditions of probation," his probation may be revoked.
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Tenn. Code Ann. § 40-35-311(d). The decision to revoke a suspended sentence
rests within the discretion of the trial court. The Sentencing Commission Comments
to § 40-35-310 provide that "[u]pon revocation, the original sentence imposed can
be placed into effect." The determination by the trial court, if conscientiously made,
is entitled to an affirmance. The record must merely demonstrate that there is
substantial evidence to support its conclusions. State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980); see also State v. Williamson, 619 S.W.2d 145, 147 (Tenn.
1981). Upon appeal, the findings of the trial court are entitled to the weight of a jury
verdict. The judgment of revocation will be upheld unless there is no substantial
evidence to support those findings. State v. Wall, 909 S.W.2d 8 (Tenn. Crim. App.
1994); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
As a condition of probation, the defendant was required to comply with
the laws of the state of Tennessee. Here, the state established that the defendant
had assaulted Ms. Burkhart. The testimony of the victim was supported by an
independent witness. As was his prerogative, the trial judge, who saw and heard
the witnesses firsthand, accredited the proof offered by the state. Under those
circumstances, it cannot be said that the trial court abused its discretion.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
James Curwood Witt, Jr., Judge
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