State v. Jerry Ellison ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
March 9, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9707-CR-00291
)
Appellee ) HAMILTON COUNTY
)
v. ) HON. DOUGLAS A. MEYER,
) JUDGE
JERRY ALLEN ELLISON, )
) (Revocation of probation)
Defendant/Appellant )
FOR THE APPELLANT: FOR THE APPELLEE:
Ardena J. Garth John Knox Walkup
District Public Defender Attorney General & Reporter
11th Judicial District
R. Stephen Jobe
Donna Robinson Miller Assistant Attorney General
Assistant District Public Defender Criminal Justice Division
Suite 300 - 701 Cherry St. 425 Fifth Avenue North
Chattanooga, TN 37402 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
This is an appeal by the defendant from the judgment of the trial court which
revoked a previously granted probation to him.
The judgment of the trial court is affirmed.
In December 1996, the defendant entered a plea of incest, which arose from
his sexual intercourse and oral sex with his step-daughter on eight to ten occasions
when she was fourteen and fifteen years of age. On March 13, 1997, the trial judge
sentenced the defendant to serve six years for the offense. The defendant served a
30 day “shock” time in jail and on April 21, 1997 the remainder of the sentence was
suspended and the defendant was placed on intense probation.
On May 6, 1997, a petition was filed to revoke the probation because the
defendant had been arrested for assault. On June 18, 1997, the trial court revoked
the defendant’s probation and ordered him to serve the remainder of the six year
sentence.
The record shows that the defendant and the mother of the child in the case
were divorced sometime before the case was concluded. When the defendant was
released from jail, he began to live with a woman named Benson, who was
apparently 19 years of age.
The Benson woman testified that on May 4, 1997 she hid the telephone from
the defendant because she thought he was going to call the child upon whom he
had committed incest. The defendant found the telephone and they struggled over
the use.1 According to the woman, the defendant threw her onto the bed and began
to choke her. In the course of this altercation the defendant said “if I have to go to
jail, you’re going to die.” The evidence shows that an officer who investigated this
case saw marks upon the woman’s neck.
1
This was 13 days after the defendant had been placed on probation.
-2-
The record shows that the woman attempted to keep the defendant from
going to jail by telling the prosecution that she had lied about what occurred. She
was reminded that her sworn affidavit was a part of the record and that if she
testified to the contrary she would be prosecuted for perjury. 2 All of the impeaching
evidence was shown in the hearing and the woman testified that she spoke the truth
when she related how the defendant had assaulted her. The defendant testified
contrary to the woman’s version.
The trial judge found the woman’s story of the assault to be credible and he
found the defendant had committed the assault.3
The decision to revoke probation rests within the discretion of the trial judge,
State v. Mitchell, 810 S.W.2d 733 (Tenn. Crim. App. 1991), and it will not be
reversed on appeal unless there is a showing of an abuse of that discretion. State
v. Harkins, 811 S.W.2d 79 (Tenn. 1991). To reverse the judgment, there must be
no substantial evidence in the record to support the action of the trial judge. Id.In this case, the trial judge found that the defendant had committed the
offense of assault as he was accused. The evidence supports this finding. The trial
judge did not abuse his discretion in revoking the previously granted probation.
The judgment of the trial court is affirmed. It appearing that the defendant is
indigent, costs of this appeal are taxed to the State.
John K. Byers, Senior Judge
2
The indictment for assault was dismissed summarily after the revocation.
3
The trial judge had indicated that he was concerned about the defendant
having contact with the victim. However, he announced he would not consider this
because the probation grant did not prohibit this. The defendant raised this as an
issue on appeal, but this does not entitle the defendant to relief.
-3-
CONCUR:
James Curwood W itt, Jr., Judge
Norma McGee Ogle, Judge
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