State v. Mann

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1997 SESSION
July 31, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9607-CC-00265
)
Appellee, ) SULLIVAN COUNTY
)
VS. ) HON. R. JERRY BECK, JUDGE
)
ERNEST GENE MANN, ) (Violation of Probation)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
GALE FLANARY JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
P.O.Box 839
Blountville, TN 37617 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
GREG NEWMAN and
GENE PERRIN
Assistant District Attorney Generals
P.O. Box 526
Blountville, TN 37617
OPINION FILED:
AFFIRMED
CHRIS CRAFT,
SPECIAL JUDGE
OPINION
The defendant, Ernest Gene Mann, appeals as of right from an order revoking
his probation on three sexual battery convictions. The warrant for violation of
probation alleged three violations: 1) that the defendant committed a domestic violence
assault, 2) that he used an intoxicant to excess, and 3) that he failed to complete his
sex offender treatment program. The state and defense tendered a guilty plea to the
trial judge, the defendant admitting guilt to the last two charges, but pleading “no
contest” to the domestic violence assault, with an agreed sentence of 30 days in jail
and then 6 months in a community corrections program, a part of which would entail
completion of the sex offender treatment program. The trial judge rejected the
settlement, feeling that the defendant was statutorily ineligible for community
corrections, sexual battery being a crime of violence to the person. A hearing was then
had on a not guilty plea, at which the state called three witnesses. T h e
defendant’s wife, Lucretia Mann, was called by the state concerning the domestic
violence assault, but recanted her statement to the police. She testified that she lied
to the police about that incident and that she had really started the fight and that it was
her fault. She also testified on cross-examination that the defendant missed his sex
offender treatment session because they couldn’t afford it..
The police officer who arrested the defendant for the domestic violence
complaint then testified that he saw the wife’s injuries and that the defendant had a
strong odor of alcohol on his breath when arrested.
The final witness was the therapist who was giving the defendant his sex
offender treatments, or “psycho-sexual evaluation.” She testified that the defendant’s
wife first missed her appointment, which would have cost $90, and the defendant then
missed his next appointment, which would have cost $120. She also stated that there
was no evidence that the defendant or his wife ever called to cancel the appointments,
or give a reason why they were missed.
The defendant offered no proof, other than the cross-examination of his wife,
to show why he had not attended the counseling sessions. The trial judge found that
the defendant’s wife was a “thoroughly impeached” witness, and obviously gave her
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financial excuse little credence. He dismissed the domestic violence and intoxication
grounds, but found that the defendant violated his probation in missing his
appointment with the therapist.
In probation revocation hearings, the credibility of the witnesses is for the
determination of the trial judge. Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965);
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). On review, the findings
of the trial judge have the weight of a jury verdict. Carver v. State, 570 S.W.2d 872,
875 (Tenn. Crim. App. 1978). When a trial judge finds that a defendant has violated
the conditions of his or her probation, the judge has the authority to revoke probation.
T.C.A. § 40-35-310. In making this determination, the trial judge need not find beyond
a reasonable doubt that a violation of the terms of probation has occurred. The
existence of a violation need only be supported by a preponderance of the evidence.
T.C.A. § 40-35-311(d). The revocation of a suspended sentence rests in the sound
discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). For this Court to find an abuse of discretion by the trial court 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." Delp, 614 S.W.2d at 398. In this case, the trial
court exercised conscientious judgment in revoking appellant's probation. We therefore
uphold the lower court's decision. While the actions that resulted in the revocation of
his probation may seem trivial to appellant, he entered into the probation agreement
knowing full well its terms and conditions. State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim.
App. 1994). We find the existence of a violation to be supported by a preponderance
of the evidence.
The judgment of the trial court is AFFIRMED.
CHRIS CRAFT, SPECIAL JUDGE
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CONCUR:
JERRY L. SMITH, JUDGE
JOE RILEY, JUDGE
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