State of Tennessee v. Roy Evans ( 2021 )

07/20/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 29, 2021
STATE OF TENNESSEE v. ROY EVANS
Appeal from the Circuit Court for Sevier County
No. 20358-III Rex H. Ogle, Judge
___________________________________
No. E2020-01297-CCA-R3-CD
___________________________________
Roy Evans, Defendant, admitted to violating the conditions of probation and submitted the
sentencing determination to the trial court. Following a hearing on the sentence, the trial
court revoked probation and suspension of the sentence and ordered Defendant to
commence the execution of the judgment as originally entered. Discerning no error, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
M. Timothy Arrants, Sevierville, Tennessee, for the appellant, Roy Evans.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; James B. Dunn, District Attorney General; and Charles L.
Murphy, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
Defendant was indicted on May 11, 2015, for aggravated statutory rape and
solicitation of a minor. On February 21, 2017, he pleaded guilty to aggravated statutory
rape and was sentenced to four years, with six months to be served in confinement followed
by supervised probation for the balance of the term. Defendant was required to register as
a sex offender. The State dismissed the solicitation charge.
On July 13, 2020, a violation of probation warrant was issued alleging that
Defendant “committed the felony offense” of violating “Residential and Work
Restrictions” in Knox County. The warrant alleged that, between August 2019 and April
2020, Defendant “had contact, including overnight visits, with a minor child, A.F.,” in
violation of “Specialized Probation Condition number 9.” According to the warrant, A.F.
was Defendant’s biological daughter, but “his parental rights over A.F. ha[d] been
terminated.” The warrant also alleged that, on July 9, 2020, Defendant was suspended
from sex offender treatment “for failure to pass a polygraph, violation of group rules, and
failure to make progress in treatment.”
Probation Revocation Hearing
At the beginning of the August 24, 2020, revocation hearing, Defendant pleaded
guilty to violating the terms and conditions of his probation, leaving sentencing open to the
court. The State called Knox County Probation Officer Melanie Godden who began
supervising Defendant’s probation in January 2020. She said that Defendant committed a
“felony offense” by violating the “Residential and Work Restrictions regarding the sex
offender registry - - in Knox County.” When asked by the court how Defendant violated
the restrictions, Officer Godden stated:
He was having overnight visits with a minor child. And then between
the months of August of 2019 and April of 2020, he had contact, including
overnight visits, with a minor child with the initials of A.F., and this contact
-- even the contact itself -- is prohibited by his specialized probation
conditions because he has two sex offenses.1 He has been convicted of two
sex offenses against minor children.
And then on July 9th of 2020, [D]efendant was suspended from sex
offender treatment for failure to pass a polygraph, violation of group rules,
and failure to make progress in treatment.
On cross-examination, Officer Godden agreed that Defendant reported to her and
passed his drug screens. When asked if the minor child was Defendant’s biological
daughter, Officer Godden answered:
He is the biological father of that child. However, he voluntarily signed away
his parental rights, which means he has no legal rights to that child, so that
1
The record on appeal includes a Criminal History Report filed shortly after Defendant was
indicted, which shows that Defendant was convicted of statutory rape on July 30, 2007, and was sentenced
to one year to serve.
-2-
child is no different than a stranger child at this point. He has no legal rights
to that child.2
Defendant testified that he “signed away his rights” to his daughter “because [he]
was facing a sex offense.” Defendant claimed that he was contacted by A.F.’s mother and
asked if he wanted to see his daughter. Defendant explained that he did not want to deny
his child the opportunity to see him after her mother approached him and asked for contact
between them. He claimed that he asked his previous three probation officers if he could
see his daughter, but they never got back to him. He did not ask Officer Godden but said
that he thought his wife mentioned it to her. Defendant also admitted that he was facing
charges in Knox County over the violation of the sex offender registry.
Officer Godden presented rebuttal testimony stating that she “was not aware this
child even existed” and that neither Defendant nor A.F.’s mother ever mentioned the child
to her.
Following argument of counsel, the trial court noted that Defendant “was convicted
of some very serious charges” and “placed on the sex offender registry,” which prohibits
Defendant from “having contact with minor children.” The court noted:
[D]efendant has prove[n] -- and it’s his words not mine -- that
basically he could not tell this young girl no when she supposedly wanted to
see him.” Well, he’s the adult in the room, so to speak, and it was his job to
stay away, to abide by the law. . . . And he basically said he was going to
see her, and he did.
The court found that Defendant was “in willful violation” by having inappropriate
contact with a minor child on numerous occasions. The court revoked probation and
ordered the execution of the original sentence. Defendant timely appeals.
Analysis
On appeal, Defendant argues that the trial court abused its discretion by ordering
the commencement of the original sentence. The State argues that the trial court acted
2
The record on appeal includes a Probation Violation Report submitted by Officer Godden and
filed with the trial court on July 13, 2020, the same day that the Violation of Probation and Arrest Warrant
was signed by the trial court and filed. The report stated that A.F. had been adopted on April 17, 2015, and
that A.F.’s adoptive parents had provided Officer Godden with a copy of the Final Decree of Adoption.
Neither Officer Godden nor the trial court mentioned the Probation Violation Report or the adoption during
the revocation hearing.
-3-
within its discretion in revoking Defendant’s probation and ordering him to serve the
balance of his sentence in confinement. We agree with the State.
“If the trial judge finds that the defendant has violated the conditions of probation
and suspension by a preponderance of the evidence, the trial judge shall have the right by
order duly entered upon the minutes of the court to revoke the probation and suspension of
sentence,” and “[c]ause a defendant to commence the execution of the judgment as
originally entered[.]” Tenn. Code Ann. § 40-35-311(e)(1)(A) (2020); see also Tenn. Code
Ann. § 40-35-310(a) (“[T]he trial judge may order the original judgment so rendered to be
in full force and effect from the date of the revocation of the suspension[.]”). We will not
disturb the trial court’s ruling on appeal absent an abuse of discretion. State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001). To establish an abuse of discretion, a defendant must show
that there is “no substantial evidence” in the record to support the trial court’s
determination that a violation of probation has occurred. Id. (citing State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991)).
Defendant argues on appeal that there was no proof that his parental rights to A.F.
had been terminated or that a surrender had been accepted by a court, and therefore, he had
the right pursuant to the “Tennessee Sexual Offender and Violent Sexual Offender
Registration, Verification and Tracking Act of 2004,” Tennessee Code Annotated section
40-39-201, et seq., to reside overnight with his biological child. Tennessee Code
Annotated section 40-39-211(c)(1)(A)(2020) provides:
(c)(1) While mandated to comply with the requirements of this part, no
sexual offender or violent sexual offender, whose victim was a minor, shall
knowingly reside or conduct an overnight visit at a residence in which a
minor resides or is present. Notwithstanding this subsection (c), the offender
may reside, conduct an overnight visit, or be alone with a minor if the
offender is the parent of the minor, unless:
(A) The offender’s parental rights have been or are in the process of
being terminated as provided by law[.]
During Defendant’s testimony at the revocation hearing, the following exchange
took place:
DEFENSE COUNSEL: Sir, you know you weren’t supposed to be around
your daughter?
DEFENDANT: Yes, sir.
-4-
DEFENSE COUNSEL: And why were you around your daughter?
DEFENDANT: Because I signed my rights away, your Honor, because I
was facing a sex offense.
Officer Godden testified that Defendant “voluntarily signed away his parental
rights, which means he has no legal rights to that child, so that child is no different than
a stranger child at this point.” Officer Godden stated that “between the months of
August of 2019 and April of 2020, [Defendant] had contact, including overnight visits,
with a minor child with the initials, A.F., and this ‘contact’ was prohibited by his
specialized probation conditions because he had been convicted of two sex offenses
against minor children.”
Because Defendant admitted that he violated the conditions of his probation, the
trial court had the right to “revoke the probation and suspension of sentence” and “[c]ause
[D]efendant to commence the execution of the judgment as originally entered[.]” Tenn.
Code Ann. § 40-35-311(e)(1)(A) (2020).
Conclusion
We affirm the judgment of the trial court.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
-5-