State of Tennessee v. Trestan Lemark Yarbrough ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 10, 2010
STATE OF TENNESSEE v. TRESTAN LEMARK YARBROUGH
Direct Appeal from the Circuit Court for Humphreys County
Nos. 11764, 11847, 11848 Larry Wallace, Judge
No. M2010-01259-CCA-R3-CD - Filed January 25, 2011
The defendant, Trestan Lemark Yarbrough, appeals the revocation of his probation and
reinstatement of his original sentence for his convictions for facilitation of aggravated assault
and two counts of aggravated assault, arguing that the trial court abused its discretion by
imposing a sentence that was more severe than necessary to achieve the purposes set forth
in the sentencing guidelines. Following our review, we affirm the trial court’s order revoking
the defendant’s probation and reinstating his original sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J AMES C URWOOD W ITT, J R., JJ., joined.
William B. “Jake” Lockert, III, District Public Defender; and Haylee Bradley-Maples,
Assistant Public Defender, for the appellant, Trestan Lemark Yarbrough.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
In December 2009, the defendant pled guilty to one count of facilitation of aggravated
assault and two counts of aggravated assault in exchange for an effective sentence of ten
years in the Department of Correction, suspended to supervised probation. Among the terms
of his probation were that he obey all laws, inform his probation officer of any change of
address, and “not engage in any assaultive, abusive, threatening or intimidating behavior.”
On March 10, 2010, the defendant’s probation officer filed a probation violation
report alleging that the defendant had violated the above three conditions of his probation by
violating an order of protection, assaulting and threatening his girlfriend, and changing his
residence without notification or permission.
At the revocation hearing, Tennessee Board of Probation and Parole Officer John
McGranahan testified that his supervision of the defendant began on December 14, 2009,
following the defendant’s aggravated assault convictions. The victim in one of those cases
was the defendant’s on-again, off-again girlfriend, Bobbie Glenn, and it was Glenn who, on
March 9, 2010, took out an order of protection against the defendant in which she alleged
that he had choked and assaulted her. Later that same day, Glenn telephoned the Humphreys
County Sheriff’s Department to report that the defendant had called threatening to kill her
and burn down her house. Furthermore, when arrested, the defendant told the officers that
he lived with Glenn, despite having reported monthly to McGranahan that his residence was
with his grandmother.
McGranahan identified a certified copy of the judgment in the order of protection
case, which showed that the defendant was found guilty and sentenced to ten days in jail
“with recommendation that his 10 yr Probation not be revoked.” He testified that during his
brief period of supervision, the defendant, who was unemployed and had no identification,
reported each month as directed, took steps to obtain a birth certificate and other
identification, and passed a February 12, 2010 drug screen. He said he had never supervised
the defendant on any other case, but his records indicated the defendant had been “violated
several times” in a previous case in which he had been sentenced to community corrections.
The defendant testified that he was still living with his grandmother on March 9, 2010,
but he had been spending his days with Glenn, with whom he had two children. He said that
Glenn told the judge during an April 1, 2010 hearing in the order of protection case that she
had made up her allegations because she was jealous of the defendant’s attentions to another
woman. However, after the judge threatened to charge her with perjury, she returned to court
and changed her story. On cross-examination, he denied that Glenn’s April 1, 2010
recantation had resulted from threats made against her by himself or his family members.
He acknowledged, however, that he knew that Glenn had gone to the district attorney’s office
before court that morning to complain about the alleged threats and that an investigation into
the matter had been initiated.
Upon examination by the trial court, the defendant testified that he had a biological
daughter with Glenn, had been in the process of adopting one of her other children, and had
two biological sons with two other women. He said he had not been ordered to pay child
support for any of the children because he had been in the penitentiary until June 11, 2008.
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When asked why he had continued his relationship with Glenn, he stated that he had told her
that he was “done” with her at the time he entered his aggravated assault guilty pleas but then
decided to give her “another chance” after she tearfully begged his forgiveness and promised
that “she would do better.”
Following the defendant’s testimony, the trial court found by a preponderance of the
evidence that the defendant had violated the three conditions of probation alleged in the
probation violation report and, consequently, revoked his probation. The court then heard
evidence relevant to sentencing, which included testimony from Lance Parker, a community
corrections case officer who had previously supervised the defendant, who said that the
defendant had been revoked from community corrections for “various rule reasons.” In
addition, John McGranahan recounted the defendant’s prior criminal history, which included
four felony convictions, including 1999 convictions for arson and aggravated burglary in
which the defendant’s concurrent six-year sentences had been suspended to community
corrections. McGranahan also quoted as follows from the summary report made when the
defendant was terminated from the community corrections program:
He failed numerous drug tests for cocaine and had new charges in Humphreys
County for disorderly contact and public intoxication. He has a history of
bond jumping. He has a history of drug abuse and has not completed any
rehab he was sent to.
McGranahan further testified that the defendant had been assigned to maximum
security while in prison.
Roxanne Yarbrough, the defendant’s mother, testified in the defendant’s behalf that
she had witnessed a change in the defendant during the time he had been on probation,
observing that he spent most of his time with his children, helped his disabled grandmother,
and stayed home more often than he had in the past. She described Glenn as a jealous
woman and said she had told her that she and the defendant needed to learn to either get
along or to stay away from each other. Finally, she testified that Glenn had visited the
defendant in jail within the past two weeks.
At the conclusion of the hearing, the trial court ordered that the defendant serve his
original sentence in confinement based on the violent circumstances surrounding his original
offenses and his violation of probation, his unsuccessful history on community corrections,
and his demeanor before the court. The trial court’s ruling states in part:
And also on cross examination by the State, I did, based on his
demeanor, . . . get a sense that . . . if he could get his hands on Ms. Glenn
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again for what she’s done to him, putting him back here in jail again, that he
would.
And the Court just doesn’t feel like [the defendant] is looking in the
mirror and accepting responsibility for his actions and choices that we make
and that it’s always someone else’s fault. He’s blamed Ms. Glenn for all these
problems. He’s even blamed [the judge who found him in violation of the
order of protection] for putting . . . Ms. Glenn’s back against the wall to . . .
force her to testify the way she did. In effect, suborning perjury, I guess you
could say in a way, which I don’t find very persuasive.
So, based on all these factors, the Court believes that [the defendant’s]
probation should be fully revoked and he’s to serve the balance of his
sentence.
ANALYSIS
The sole issue the defendant raises on appeal is whether the trial court abused its
discretion by imposing too harsh a sentence upon the revocation of his probation. He asserts
that there was “a misunderstanding with regard” to his alleged change of residence without
permission and argues that he has been sufficiently punished for his violation of the order of
protection by the ten-day jail sentence he received. He also points out that he passed his drug
screen and has made progress toward obtaining his identification and seeking employment.
He, therefore, contends that he should have been resentenced to community corrections
following one year’s service of his sentence in the county jail. The State responds by arguing
that the trial court acted within its discretion in reinstating the defendant’s original ten-year
sentence in the Department of Correction. We agree with the State.
The trial court is expressly authorized by statute to reinstate a defendant’s original
sentence upon a finding that the defendant has violated the terms of his or her probation. See
Tenn. Code Ann. §§ 40-35-310, -311 (2010); State v. Hunter, 1 S.W.3d 643, 646 (Tenn.
1999). Upon a finding that a violation has occurred, the trial court may, in its discretion,
either: (1) order incarceration; (2) order that the original entire probationary period begin
anew; or (3) extend the probationary period by up to two years. Hunter, 1 S.W.3d at 644;
Tenn. Code Ann. §§ 40-35-308, -310, -311 (2010).
The revocation of probation lies within the sound discretion of the trial court. State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226
(Tenn. Crim. App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
To show an abuse of discretion in a probation revocation case, “a defendant must
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demonstrate ‘that the record contains no substantial evidence to support the conclusion of the
trial judge that a violation of the conditions of probation has occurred.’” State v. Wall, 909
S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn.
Crim. App. 1980)). The proof of a probation violation need not be established beyond a
reasonable doubt, but it is sufficient if it allows the trial court to make a conscientious and
intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555,
557 (Tenn. Crim. App. 1984)). We, therefore, review this issue for an abuse of discretion.
We find no abuse of discretion in the trial court’s revocation of the defendant’s
probation and reinstatement of his original sentence in the Department of Correction.
Substantial evidence, including a certified copy of the defendant’s judgment for violating the
order of protection, was presented to show that the defendant had violated the terms of his
probation. The State also presented substantial evidence to show that the defendant had been
unsuccessful with a past community corrections sentence. Moreover, although the defendant
essentially concedes on appeal that he violated the terms of his probation by not obeying the
order of protection, he failed to show any remorse for his actions at the hearing and instead
accused the victim of fabricating the allegations against him. Under these circumstances, the
trial court acted within its discretion in reinstating the defendant’s original sentence.
CONCLUSION
We conclude that the trial court acted within its discretion in revoking the defendant’s
probation and ordering that he serve his original sentence in incarceration. Accordingly, we
affirm the judgment of the trial court.
_________________________________
ALAN E. GLENN, JUDGE
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