State v. Scott Bytwerk ( 1998 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE                FILED
    AUGUST 1998 SESSION
    September 11, 1998
    Cecil W. Crowson
    Appellate Court Clerk
    STATE OF TENNESSEE,           )
    )      C.C.A. No. 01C01-9708-CC-00369
    Appellee,               )
    )      Maury County
    v.                            )
    )      Honorable Jim T. Hamilton, Judge
    SCOTT ALLAN BYTWERK,          )
    )      (Probation Revocation)
    Appellant.              )
    FOR THE APPELLANT:                   FOR THE APPELLEE:
    William C. Bright                    John Knox Walkup
    Assistant Public Defender            Attorney General & Reporter
    128 North Second Street              425 Fifth Avenue, North
    Pulaski, TN 38478                    Nashville, TN 37243-0493
    OF COUNSEL:                          Janis L. Turner
    Assistant Attorney General
    Shara A. Flacy                       425 Fifth Avenue, North
    District Public Defender             Nashville, TN 37243-0493
    128 North Second Street
    Pulaski, TN 38478                    T. Michael Bottoms
    District Attorney General
    P. O. Box 459
    Lawrenceburg, TN 38464-0459
    Lawrence R. Nickell, Jr.
    Assistant District Attorney General
    P. O. Box 459
    Lawrenceburg, TN 38464-0459
    OPINION FILED: ____________________________________
    AFFIRMED
    L. T. LAFFERTY, SPECIAL JUDGE
    OPINION
    The defendant, Scott Allan Bytwerk, appeals as of right from a ruling of the Maury
    County Circuit Court revoking his post-plea diversion placement. The defendant complains
    the trial court erred in revoking his post-plea diversion based upon the evidence heard at
    the revocation hearing. After an appropriate review of the record, the briefs submitted by
    the parties, and the law governing the issue presented for review, it is the opinion of this
    Court that the judgment of the trial court is affirmed.
    HISTORY
    On March 5, 1997, the defendant was convicted in the General Sessions Court of
    Maury County for simple assault and allowing dogs to run at large. On March 7, 1997, the
    defendant appealed the convictions to the Maury County Circuit Court demanding a jury
    trial.   Then began the turbulent relationship between the defendant, his next-door
    neighbors, and the Maury County Circuit Court. On April 3, 1997, the State believed it
    necessary to file a motion requesting that certain conditions be placed on the defendant’s
    appearance bond, such as that the defendant’s farm animals be confined to his property
    and not trespass onto the property of his neighbors. As was expected, the defendant, in
    the eyes of the State, violated the conditions of bail release and the trial court revoked the
    defendant’s appearance bond and ordered that all of the defendant’s animals be
    destroyed. Later, the trial court permitted the animals to be sold in lieu of destruction. As
    part of the revocation order, the defendant was ordered to undergo a psychiatric
    examination.
    On May 15, 1997, the defendant, through his attorney and the State, applied for
    post-plea diversion. The trial court so ordered judicial diversion for a period of eleven
    months and twenty-nine days with the condition the defendant would remain in jail pending
    the completion of the mental examination and the trial court’s review of the results.
    Further, the defendant was to have no contact with the neighbors. On July 21, 1997, the
    State moved to revoke the defendant’s judicial diversion and the trial court set a hearing
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    for July 22, 1997. Based on the testimony in this record and the history of this case, the
    trial court revoked the defendant’s judicial diversion and reinstated the defendant’s original
    sentence.
    REVOCATION HEARING
    The State called Mr. Cregg Harris, the defendant’s next-door neighbor, in support
    of the motion to revoke diversion. Mr. Harris related three (3) incidents where he believed
    the defendant violated the trial court’s order. The first incident occurred when the
    defendant wrote on his window or put up a sign that read “Liar, Liar.” The Harrises ignored
    the words. The second incident was when Mr. Harris was driving his vehicle along his
    property line and observed the defendant feeding some animals. The defendant started
    walking towards Mr. Harris’s vehicle, beating his fist in his hand. Mr. Harris pulled off and
    the defendant quit approaching the fence. The third incident was when Mr. Harris’s
    stepson and friend were playing in the yard with a dog. The defendant called the dog to
    his property and the dog has not been seen since. Also, Mr. Harris observed the
    defendant with new animals in contradiction to the trial court’s order. Mr. Harris admitted
    none of the animals had ever entered his property, nor had the defendant come on Mr.
    Harris’s property.
    Mrs. Carol Harris related to the trial court that on July 21, 1997 she received a
    phone call from a man who said something to the effect, “Jesus saves those that confess
    their sins.” Mrs. Harris panicked and hung up the phone. Later that afternoon, Mrs. Harris
    observed something written in the defendant’s window facing their home, a sign saying
    “Jesus saves, Romans 10:9" and “Ask him.” Mrs. Harris admitted she could not identify
    the voice of the caller. Also, Mrs. Harris testified she was anxious about the defendant
    based on past incidents.
    The defendant testified in his own behalf as well as Mr. William Brisco and the
    defendant’s father, Mr. Jerry Bytwerk. Mr. Brisco, employed at Columbia State Community
    3
    College, advised the trial court he would permit the defendant to stay at his home for a
    short period of time and would assist the defendant. Mr. Brisco admitted he advised the
    defendant to put up the “Jesus Saves” sign and the one that said “Liar, Liar.” Mr. Brisco
    stated, “my feeling was that that was a positive sign out of the Bible rather than a criticism
    of ‘Liar, Liar’ . . . it was a mistake for me to advise him that, but I did.”
    Mr. Jerry Bytwerk, the defendant’s father, advised the trial court he planned to sell
    the property. Also, his son had agreed not to return to the property. Mr. Bytwerk admitted
    he and his wife had had problems with their son in the past, even to the extent of obtaining
    a no contact court order against the defendant. The witness agreed there remained
    approximately 50 poultry, turkeys, geese, pheasants, and ducks on the property.
    The defendant advised the trial court he did not wish to live on the property because
    the Harrises harassed him and gave him no peace whatsoever. The defendant testified,
    “I have never wanted to have anything to do with the Harris’. I just wanted them to be my
    friends at first and then they didn’t want me living there and so they’ve tried to move me
    out and they’ve succeeded.” The defendant agreed to never go on the road where the
    Harrises live. As to the signs, the defendant stated, “those signs that are in my windows
    are to say positive things. They’re not to be destructive or subliminal--I don’t know what
    they said.”
    Based on this evidence, the trial court found the defendant violated the conditions
    of the no contact order as well as the post-plea diversion agreement.
    The standard by which we review a revocation of judicial diversion is abuse of
    discretion.
    “In order for a reviewing Court to be warranted in finding an abuse of discretion in
    a probation revocation hearing, it must be established that the record contains no
    substantial evidence to support the conclusion of the trial judge that a violation of the
    4
    conditions of probation has occurred.” State v. Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991).
    We also note that the trial court was entitled to revoke probation upon a finding by
    the preponderance of the evidence that the defendant violated several conditions of
    probation. T.C.A. § 40-35-311(d).
    Since this hearing concerned a post-plea diversion agreement, this Court will
    assume it was granted under the requirements of T.C.A. § 40-35-313(a). Thus, the
    standard in reviewing a revocation of judicial diversion would be an abuse of discretion.
    The trial court in its ruling for revoking the post-plea diversion stated:
    All right, Mr. Bytwerk, I’m going to revoke your post-plea
    diversion for these reasons. I think you clearly have violated
    the no contact order. I don’t know what goes through your
    mind. I’m not a psychiatrist. I probably should be, but I’m not.
    I don’t know what you think. But, I mean, the actions you’ve
    taken could be for one purpose and one purpose only, and
    that’s to contact these people--not physically, but in a way
    maybe even more devious than physical contact. You don’t
    pay any attention to anything that I say, anything that I suggest
    to you.
    In sum, we conclude that the record on appeal clearly justifies the trial court’s finding
    that the defendant violated the conditions of his post-plea diversion. The judgment of the
    trial court is affirmed.
    _____________________________________
    L. T. LAFFERTY, SPECIAL JUDGE
    5
    CONCUR:
    ________________________________
    JOHN H. PEAY, JUDGE
    ________________________________
    THOMAS T. WOODALL, JUDGE
    6
    

Document Info

Docket Number: 01C01-9708-CC-00369

Filed Date: 9/11/1998

Precedential Status: Precedential

Modified Date: 10/30/2014