State of Tennessee v. Randall D.Bennett ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2005
STATE OF TENNESSEE v. RANDALL D. BENNETT
Direct Appeal from the Criminal Court for Davidson County
No. 99-D-2298 Seth Norman, Judge
No. M2004-02119-CCA-R3-CD - Filed June 1, 2005
The defendant, Randall D. Bennett, appeals the revocation of his probation, arguing that the trial
court erred in revoking his probation based on the uncorroborated testimony of the defendant’s
probation officer. Following our review, we affirm the order of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.
William A. Lane, Murfreesboro, Tennessee, for the appellant, Randall D. Bennett.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Debbie Housel, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
FACTS
On October 14, 1999, the defendant was charged by the Davidson County Grand Jury with
rape of a child. On August 10, 2000, he pled guilty to rape, a Class B felony, and was sentenced to
eight years split confinement, with one year of incarceration and the remaining seven years on
supervised probation. The defendant’s probation was subject to a variety of conditions set out in
three different documents. His guilty plea agreement and judgment form indicated that the defendant
was to receive mandatory sex offender treatment and was to register with the sex offender registry.
The probation order, signed by the defendant on August 10, 2000, contained several conditions
including, inter alia:
1) I will obey the laws of the United States as well as any municipal ordinances.
....
4) I will work at a lawful occupation and support my dependents, if any, to the best
of my ability.
5) I will inform my probation officer before changing my residence or employment.
I will get the permission of my Probation Officer before leaving the State.
6) I will allow my Probation Officer to visit my home; employment site, or
elsewhere, and will carry out all instructions he/she gives, and report to my Probation
Officer as instructed.
7) I will not use intoxicants (beer, whiskey, wine, etc.) of any kind, to excess, or use
or have in my possession narcotic drugs or marijuana. I will submit to drug screens
as directed.
....
9) I will agree to pay all required fees to the Supervision and Criminal Injuries fund
unless waived by appropriate authorities.
Additionally, the probation order contained a special condition under Rule 10 for the defendant to
attend a sexual offenders treatment program.
On January 9, 2004, the defendant’s probation officer, George Harrien,1 filed a violation of
probation affidavit alleging that the defendant had violated probation order Rule 4 by failing to verify
lawful employment since October 7, 2003; Rule 6 by being discharged from officer instructed sex
offender treatment; Rule 9 by failing to verify fee payment and owing fees dating back to June 2003;
and Rule 10 by failing to properly register with the Tennessee Bureau of Investigation (“TBI”) Sex
Offender Registry since December 27, 2002, and for being discharged from sex offender treatment.
On January 28, 2004, the trial court entered an amended judgment, sustaining the probation
violation and placing the defendant back on supervised probation with the additional condition that
the defendant “make restitution of $300 to Dr. David Orvin at rate of $5/week.” On March 3, 2004,
the defendant signed the Sex Offender Directives which included:
3. I will attend, participate in, and pay for treatment or counseling with an approved
treatment provider as deemed necessary by the Board, the Court, or my Officer, per
TCA 39-13-706. I will continue in such treatment as instructed for the duration of
1
The probation officer’s name is spelled three different ways in the record: Harrien, Harrein, and Herion. We
will therefore utilize the spelling in the initial violation of probation affidavit.
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supervision unless my treatment provider, in consultation with my Officer, instructs
me in writing that I have satisfactorily completed treatment.
....
5. I will submit to and pay for a polygraph assessment and evaluation as instructed
by the Board, the Court, my treatment provider, or my Officer. I understand that this
will be required at least twice a year.
6. If applicable, I will register within 10 days of my release with the TBI Sex
Offender Registry and comply with the TBI monitoring program, per TCA 40-30-
103.
7. I will live only in a residence approved by my Officer and agree not to share
residence with any person with a history of sexual offense conviction, with exception
to residential treatment facilities. I will not move without prior approval from my
Officer.
On May 28, 2004, Harrien filed a second violation of probation affidavit alleging that the
defendant had violated probation order Rule 1 by failing “to observe TCA 39-13-706 regarding sex
offender treatment;” Rule 4 by failing to maintain a lawful occupation; Rule 6 by being discharged
from sex offender treatment; Rule 10 and Sex Offender Directives Rule 3 by failing to attend sex
offender treatment; and failing to provide proof of $5.00 weekly restitution payments since May 4,
2004, as ordered by the court when the defendant’s probation was reinstated.
On July 7, 2004, Harrien filed an amended affidavit, alleging that the defendant had violated
probation order Rule 5 by failing to inform his probation officer of a change of address prior to and
after moving; Rule 6 by failing to report since May 24, 2004, failing to submit to a polygraph
evaluation as instructed, failing to properly register with the TBI Sex Offender Registry, and failing
to receive officer approval of his “current unknown residence;” and Rule 10 by failing to properly
register with the TBI Sex Offender Registry.
At the defendant’s July 7, 2004, revocation hearing, Harrien testified that he had been the
defendant’s probation officer since January 2003, and, during that time, the defendant had “various
periods of non-compliance when it comes to probation and treatment.” The defendant originally
signed the sex offender directives on January 14, 2000, although that document is not included in
the record. The defendant signed another set of sex offender directives on March 3, 2004, under the
supervision of Harrien. The defendant was in non-compliance when Harrien first began supervising
him, including sporadic office visits as well as sporadic attendance at sex offender treatment
meetings. Harrien first filed a violation report on July 25, 2003, detailing the defendant’s moving
on two occasions without notifying Harrien, traveling outside the county without office supervision,
failing to report to Harrien on seven different dates, as well as failing to attend sex offender treatment
on six different occasions. He had also not updated his information on the TBI Sex Offender
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Registry since December 27, 2002. However, Harrien did not seek a probation violation warrant at
that time, but attempted to work with the defendant to “bring him into some form of compliance”
in part because the defendant’s girlfriend was pregnant. Since then, the defendant had been
terminated from his treatment provider, David Orvin of Atlantic Behavioral Systems. Harrien then
sought the first probation violation warrant in January 2004, but “spoke on the [defendant’s] behalf”
at the hearing and assisted the defendant in getting placed back on supervised probation.
After being placed back on probation, the defendant’s “pattern of behavior, basically . . .
continued.” The defendant missed treatment in February, made some of his restitution payments,
and obtained sporadic employment “at best.” The last time the defendant reported to Harrien was
May 24, 2004, and Harrien filed another probation violation report on May 27, 2004, based on the
defendant’s discharge from treatment due to non-compliance, failure to maintain a lawful
occupation, and failure to make weekly restitution payments. On the day of the hearing, Harrien
filed an amended affidavit alleging the defendant failed to inform him of a change of address, failed
to report as instructed since May 24, failed to submit to a polygraph evaluation, and failed to update
his address with the sex offender registry. On cross-examination, Harrien testified that the defendant
had been discharged from treatment twice for “[n]on-compliance with treatment directives, sporadic
attendance and failure to pay his treatment fees.” The defendant had properly registered on the sex
offender registry in January 2004 but had been in non-compliance since changing addresses in
March, due to his failure to update his information on the registry within the required ten days of the
move. Harrien also had no record of the defendant’s current address and did not know where the
defendant was residing.
The twenty-four-year-old defendant testified that he was working about fifteen hours a week
for his pastor as an “[I]nternet consultant” and had been working over fifty hours a week for Labor
Finders. However, he was no longer working for Labor Finders and had not reported his church
work to Harrien. He had not talked to Harrien lately because the last time he called to report that he
would not be able to attend a sex therapy class, Harrien told him he was going to file a probation
violation report, which he did. The defendant wanted to meet with Harrien and his counselor, John
Brogden, to “tell them . . . what’s going on and everything.” However, Harrien “didn’t want to hear
about it” and “wouldn’t have the session with” the defendant. He acknowledged he had been
discharged from his first treatment program because of non-payment and from the second program
for non-attendance, although he contended his attendance was “pretty good.” The defendant
admitted to moving without notifying Harrien. He also stated, “I know I did wrong. That’s why I’m
hear [sic] to accept my consequences.” The defendant said he stopped reporting to Harrien because
“it wasn’t going to make a difference if I contacted him or not, I’m still in trouble.” On cross-
examination, the defendant admitted that within the last three and a half years, he probably had
missed sex offender treatment classes about twenty-one times.
Shauna Mason Garris, the defendant’s fiancée, testified the defendant had “done nothing but
provide for us,” referring to herself and her two children. Garris stated she was pregnant with the
defendant’s child, which was due in about ten weeks. She said that the defendant failed to attend
treatment because they could not afford it and had lost a job because he had to be in court for his
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January probation violation. She stated that the defendant had asked for “indigency,” but was denied
because the “DA . . . didn’t want to sign off on it.” She and the defendant had always notified
Harrien of their moves “except for this time.” On cross-examination, she acknowledged that she
knew when she began dating the defendant and before she had his child that he had “responsibilities
to this court” and that he had “promised this Judge that he would do certain things.”
At the conclusion of the hearing, the trial court took the matter “under advisement” and gave
the defendant two weeks “to find a 40 hour a week job and do everything he is supposed to do.”
Two weeks later, on July 21, 2004, the defendant reported back to court, and the State advised the
court that the defendant was not working, and Harrien advised that the defendant had moved again
without notifying him and was still not in compliance with the sex offender registry. The trial court
then revoked the defendant’s probation and reinstated the original sentence.
ANALYSIS
The defendant argues the trial court abused its discretion in revoking his probation based only
on the “bare allegations made and testimony given by the Probation Officer with no other proof
offered.” As a result, the trial court’s decision was not a “conscientious judgment based on a
preponderance of the evidence.”
A trial court is granted broad authority to revoke a suspended sentence and to reinstate the
original sentence if it finds by the preponderance of the evidence that the defendant has violated the
terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311
(2003). 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 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 review this issue, therefore, for an abuse of
discretion.
The defendant admitted that he “just quit” reporting to Harrien and that he had moved
without notifying him. Additionally, he admitted to being discharged from two treatment programs
for non-payment and non-attendance. He also admitted that he had missed approximately twenty-
one treatment classes since being placed on probation. His explanation on direct examination as to
why he had not complied with the requirements of the sex offender registry is lengthy but unclear:
The registry, you cannot register without them sending you something. And
if you do register, like if you do go to the probation officer and register, it still
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doesn’t make any difference. I mean, it doesn’t. You’re still going to, I’ve registered
through that whole time through the last violation at George [Harrien’s] office,
sending once a week maybe, just to see if they could get me on there and correct it.
They said that’s, that ain’t the way they do it. They have to mail you something
every three months and if you don’t receive it, it’s not their fault. And there is no
way of changing that.
....
I could register, but it didn’t do any good. I mean he has sheets that, the same
sheets they actually mail you. But if you give it to your probation officer and he puts
it in the, you know, the mail, and you know he is standing beside you, it still doesn’t
matter.
We conclude that there was “substantial evidence to support the conclusion of the trial
judge,” consisting not only of the testimony and the sworn affidavits of the probation officer, but the
admissions and testimony of the defendant as well. Wall, 909 S.W.2d at 10. The defendant’s
probation officer testified to several violations, at least three of which were admitted by the
defendant. Thus, the evidence that the defendant had violated his probation was not just
“substantial;” several violations were admitted. We note, also, that the defendant was given at least
two “second chances” by the trial court, which showed an abundance of patience. Therefore, we
conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the trial court’s revocation of
the defendant’s probation and reinstatement of his original sentence.
___________________________________
ALAN E. GLENN, JUDGE
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