State v. Bacon ( 1998 )

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.
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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
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