State of Tennessee v. Adrian Waite ( 2021 )

01/08/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 25, 2020
STATE OF TENNESSEE v. ADRIAN WAITE
Appeal from the Criminal Court for Hamilton County
Nos. 303750, 303754 Tom Greenholtz, Judge
No. E2019-02017-CCA-R3-CD
The Defendant appeals as of right from the Hamilton County Criminal Court’s revocation
of his probation and reinstatement of the remainder of his three-year sentence for one count
each of theft of property valued at more than $1,000 but less than $2,500 and forgery in
the same amount. On appeal, the Defendant asserts that the trial court abused its discretion
by revoking his probation because: (1) the Defendant remained actively employed and
made efforts to contact his probation officer; (2) the Defendant’s probation revocation
“robbed victims of owed restitution and imposed an unnecessary financial burden upon the
state’s taxpayers”; (3) the Defendant’s probation revocation “runs contrary to the
Governor’s stated desire to use alternatives to incarceration for low-level, nonviolent
offenders”; and (4) the Defendant’s probation revocation does “not reflect the trial court’s
expectation that [he] would be released soon after his revocation hearing.” Following our
review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Steve E. Smith, District Public Defender; Jessica Fay Butler, Assistant Public Defender
(on appeal); and Kevin L. Loper, Assistant Public Defender (at revocation hearing), for the
appellant, Adrian Waite.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; and Neal Pinkston, District Attorney General; and Colin Campbell, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On May 10, 2018, the Defendant pled guilty to one count of theft of property valued
at more than $1,000 but less than $2,500 and one count of forgery in the same amount. See
Tenn. Code Ann. §§ 39-14-103, -114. In exchange for his plea, the Defendant received a
two-year sentence on the theft count and a one-year sentence on the forgery count, to be
served consecutively, for a total effective sentence of three years as a Range 1, standard
offender to be served on probation. Additionally, the Defendant was ordered to pay
$881.50 in restitution in monthly installments of $50.
Thereafter, the State filed a violation of probation affidavit and warrant on January
11, 2019, alleging that the Defendant violated the conditions of his probation by (1) failing
to obey the law as a result of his January 4, 2019 arrest for aggravated sexual battery,
indecent exposure, and aggravated criminal trespass; (2) failing to report the January 4,
2019 arrest to his probation officer; (3) failing to provide a verifiable home address; (4)
absconding from supervision and failure to attend Victim Impact classes; (5) failing to pay
required fees to the Supervision and Criminal Injuries fund; (6) failing to pay restitution;
and (7) engaging in assaultive, abusive, and threatening behavior, as evidenced by his
January 4, 2019 arrest for aggravated sexual battery. The Defendant’s charges of
aggravated sexual battery, indecent exposure, and aggravated criminal trespass were
dismissed prior to the revocation hearing.
At the October 30, 2019 revocation hearing, Christina Barnes testified that she was
a probation and parole officer for the Tennessee Department of Correction. Ms. Barnes
stated that she was not the Defendant’s probation officer but that she had reviewed the
Defendant’s file. According to the file, the Defendant had last reported for probation in
June 2018, at which time he noted that he was homeless. Ms. Barnes testified that the
Defendant’s next report date was sometime in December 2018, but that the Defendant was
not given a specific date. Ms. Barnes stated that the file contained a note describing a
telephone call the probation officer made to Chattanooga Community Kitchen, where the
Defendant reported he resided; however, a contact at the Kitchen “stated they were familiar
with [the Defendant,] but they had not seen him lately.”
Chattanooga Police Sergeant Kyle Moses testified that on January 4, 2019, he
responded to a burglary alarm at the Bessie Smith Cultural Center in the early morning
hours and came into contact with the Defendant. Sergeant Moses stated that he heard
screams upon approaching and that looking down a stairwell at the rear of the building, he
saw the nude Defendant with a woman who was nude from the waist down, on her knees,
and bent over. According to Sergeant Moses, the Defendant was “just able to get a condom
placed on himself and he [was] trying to insert his penis into her vagina.” The woman “had
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several facial abrasions” that appeared to be “fresh.” Sergeant Moses confirmed that
Bessie Smith Cultural Center had “No Trespassing” signs posted. Sergeant Moses’ camera
footage from the incident was admitted into evidence; the no trespassing signs were visible
in the recording.
Chattanooga Police Officer Paul Stone testified that he also responded to the scene
and arrested the Defendant. Officer Stone recalled hearing someone say “I paid her.”
Officer Stone did not recall the Defendant’s having any money on his person. Officer
Stone stated that according to his research, which consisted of driving in the area and
looking at online maps, three elementary schools were located within one mile of the
Cultural Center.
The Defendant testified that during the summer of 2018, Dale Foote was assigned
as his probation officer. When the Defendant reported to Mr. Foote, Mr. Foote gave him
a job pamphlet. The Defendant quickly gained employment with Koch Foods. According
to the Defendant, he told Mr. Foote that his orientation date with Koch Foods was on the
same day as a required victim impact class. Mr. Foote took the note with the orientation
date and gave him permission to attend the orientation. The Defendant reported once more
to Mr. Foote that he had been hired by Koch Food, and he provided Mr. Foote his work
schedule.
The Defendant testified that he attempted to call Mr. Foote sometime in August
2018, but was informed Mr. Foote no longer worked at the probation office. The Defendant
stated that he was told he would be given a new probation officer, and he provided the
probation office with both his phone number and the phone number of a friend. At this
time, the Defendant reported that he lived at the Chattanooga Community Kitchen. The
Defendant stated that he never received a return call, contact information for his new
probation officer, or a date to report, despite his calling the probation office “two, three,
four times” before the end of 2018.
According to the Defendant, on the night of January 4, 2019, he had visited a cousin
and was on his way back to the Chattanooga Community Kitchen when he stopped at a
Suntrust Bank automatic teller machine and withdrew twenty dollars. Immediately
afterward, a young woman approached him and asked if he had money. The woman told
the Defendant that she would “supply her services for the money.” The Defendant averred
that the woman led him behind the Bessie Smith Cultural Center to have consensual sex,
for which he paid her the twenty dollars.
On cross-examination, the Defendant affirmed that he was on probation when he
patronized prostitution in a public place. He did not recall seeing a “No Trespass” sign at
the scene on the night of his arrest. The Defendant maintained that it was the young
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woman’s fault that he was found nude behind the Bessie Smith Cultural Center and that he
would not have “been in that position” had she not approached him.
Following the hearing, the trial court found that the Defendant had violated his
probation by committing further criminal offenses and ordered the Defendant to serve the
balance of his three-year sentence in confinement. In rendering its decision, the trial court
found that a preponderance of the evidence clearly established that the Defendant’s conduct
would satisfy the elements of public indecency, criminal trespass, and patronizing
prostitution within one and a half miles of a school; therefore “substantial evidence
exist[ed] to show that the Defendant violated the terms and conditions of his probation
through engaging in new criminal conduct.” See Tenn. Code Ann. §§ 39-13-514, -517,
39-14-405. The court noted that proof regarding the other alleged grounds for the
revocation had not been presented at the hearing. Thereafter, the Defendant filed a timely
notice of appeal.
On appeal, the Defendant argues that the trial court abused its discretion by fully
revoking his probation and requiring him to serve a three-year sentence in the Tennessee
Department of Correction. The Defendant admits that a violation of his probation did
occur; however, despite this violation, the Defendant emphasizes that he remained actively
employed and made efforts to contact his probation officer. Additionally, he argues that
probation revocation “robbed victims of owed restitution and imposed an unnecessary
financial burden upon the state’s taxpayers.” He argues that his probation revocation “runs
contrary to the Governor’s stated desire to use alternatives to incarceration for low-level,
nonviolent offenders.” Finally, the Defendant argues that his probation revocation does
“not reflect the trial court’s expectation that [he] would be released soon after his
revocation hearing.”
The State asserts that the trial court properly exercised its discretion in revoking the
Defendant’s probation because “the record supports the trial court’s finding that the
Defendant committed new criminal offenses and had ‘an appalling lack of acceptance of
responsibility for his actions.’”
A trial court may revoke a sentence of probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the authority to “extend
the defendant’s period of probation supervision for any period not in excess of two (2)
years,” “commence the execution of the judgment as originally entered,” or “[r]esentence
the defendant for the remainder of the unexpired term to any community-based alternative
to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). In a probation revocation
hearing, the credibility of the witnesses is determined by the trial court. State v. Mitchell,
810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
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Furthermore, the decision to revoke probation is in the sound discretion of the trial
judge. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell, 810
S.W.2d at 735. The judgment of the trial court to revoke probation will be upheld on appeal
unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). To find an abuse of discretion in a probation revocation case, “it must be established
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.” Id. (citing State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.
1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011). Such a
finding “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular
case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6
S.W.3d 235, 242 (Tenn. 1999)).
In order to establish a violation of a suspended sentence based on the commission
of a new offense, the State must offer proof by a preponderance of the evidence showing
that a defendant violated the law. See State v. Catherin Vaughn, No. M2009-01166-CCA-
R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June 14, 2010) (noting that proof of
a conviction is not necessary). The State “must present sufficient facts at the revocation
hearing to enable the trial court to ‘make a conscientious and intelligent judgment as to
whether the conduct in question violated the law.’” State v. Jason L. Holley, No. M2003-
01429-CCA-R3-CD, 2005 WL 2874659, at *4 (Tenn. Crim. App. Oct. 25, 2005) (quoting
Harkins, 811 S.W.2d at 83 n.3).
Moreover, in this case, the Defendant admitted to patronizing prostitution. This
alone is substantial evidence of record to support the trial court’s revocation order. See
State v. Michael Emler, No. 01C01-9512-CC-00424, 1996 WL 691018, at *4 (Tenn. Crim.
App. Nov. 27, 1996) (holding that where the defendant admits violation of the terms of
probation, revocation by the trial court is not arbitrary or capricious). Furthermore, this
court has repeatedly held that “an accused, already on [a suspended sentence], is not
entitled to a second grant of probation or another form of alternative sentencing.” State v.
Dannie Brumfield, No. M2015-01940-CCA-R3-CD, 2016 WL 4251178, at *3 (Tenn.
Crim. App. Aug. 10, 2016) (quoting State v. Jeffrey A. Warfield, No. 01C01-9711-CC-
00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999)); see also State v. Timothy
A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App.
Feb. 11, 2002).
Once a trial court has determined that a violation of probation has occurred, the
court has the discretionary authority to: “(1) order confinement; (2) order execution of the
sentence as originally entered; (3) return the defendant to probation on appropriate
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modified conditions; or (4) extend the defendant's probationary period by up to two
years.” State v. Brandon L. Brawner, No. W2013-01144-CCA-R3-CD, 2014 WL 465743,
at *2 (Tenn. Crim. App. Feb. 4, 2014) (citing T.C.A. §§ 40-35-308(a), -308(c), -310, -
311(e); State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999)). The determination of the proper
consequences of the probation violation embodies a separate exercise of discretion. State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).
Sergeant Moses testified that he responded to a burglary alarm at Bessie Smith
Cultural Center, where at least two “No Trespassing” signs were posted. Upon hearing
screams from a stairwell, Sergeant Moses found the Defendant nude and engaging in a
sexual act with a young woman. The Defendant told Sergeant Moses that he had paid the
woman for sexual services. In addition, Officer Stone noted the Cultural Center’s
proximity to three elementary schools and affirmed that he heard someone at the Cultural
Center say, “I paid her.” Most importantly, the Defendant testified at the revocation
hearing that he paid the woman for sexual favors.
We disagree with the Defendant that the trial court abused its discretion by revoking
his probation. The Defendant’s admission under oath that he engaged in further criminal
conduct and other evidence presented at the hearing clearly established that the Defendant
was nude, trespassing in a public place, and engaged in a sexual act for which he claimed
to have paid prove that he violated the conditions of his release.
The trial court’s decision to require that the Defendant serve the original sentence
in confinement is likewise reviewed for an abuse of discretion. Although the court noted
that the Defendant maintained employment and attempted to keep in contact with his
probation officer, the court ultimately decided to require the Defendant to serve his three-
year sentence in confinement due to the serious nature of the criminal conduct, the refusal
to accept responsibility for his actions, and the recency of the violation after his release
from custody. The trial court did not abuse its discretion. The Defendant is not entitled to
relief on this basis.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.
D. KELLY THOMAS, JR., JUDGE
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