State of Tennessee v. Timothy Scott Rauhuff

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. TIMOTHY SCOTT RAUHUFF
Appeal from the Circuit Court for Blount County
No. C-17227 David R. Duggan, Judge
No. E2009-01180-CCA-R3-CD - Filed April 8, 2010
The appellant, Timothy Scott Rauhuff, pled guilty in the Blount County Circuit Court to
manufacturing no less than 20 and no more than 99 marijuana plants. He received a four-
year suspended sentence. Subsequently, the State brought a revocation action, alleging that
the appellant violated the terms of his probation. The trial court revoked the appellant’s
probation and ordered him to serve one year in confinement and the remainder of the
sentence on intensive probation. On appeal, the appellant challenges the trial court’s
imposition of a period of continuous confinement. The State filed a motion requesting that
this court affirm the trial court’s ruling pursuant to Rule 20, Rules of the Court of Criminal
Appeals. After review, we conclude that the trial court did not err in sentencing the appellant
to a period of continuous confinement. Accordingly, the State’s motion is granted and the
judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.
J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee
(at trial), for the appellant, Timothy Scott Rauhuff.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Kathy Aslinger, Assistant District
Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
At the revocation hearing, the appellant’s probation officer, Scott Dunkel, testified
that when he first met the appellant on July 21, 2008, he went over all the rules and
regulations of probation with the appellant. Dunkel said the appellant appeared to understand
and signed a probation form, initialing beside each rule and regulation. Dunkel said the
appellant reported monthly; however, he had trouble reporting on the scheduled date and did
not always call to inform Dunkel of the need to reschedule. Dunkel said the appellant made
no payments toward his court costs, restitution, and fines, and was $360 in arrears on his
probation fees.
Dunkel said the appellant, as a condition of his probation, was required to have a drug
and alcohol assessment. Each month, Dunkel reminded the appellant of the requirement. On
October 24, 2008, the appellant tested positive for marijuana, cocaine, and oxycodone.
Dunkel said this test was the only drug test administered to the appellant. Dunkel again
informed the appellant that he needed to have a drug and alcohol assessment, but the
appellant never had an assessment.
Dunkel testified that in January 2009, the appellant was arrested in Knox County for
failure to appear and for an old simple possession charge. Dunkel said the case was closed
after “payment was made in full.” The appellant never informed Dunkel of the Knox County
arrest; in fact, the appellant reported on his monthly reporting forms that he had not been
arrested since his last report. Additionally, on April 24, 2009, the appellant was arrested in
Blount County for driving on a suspended license and possession of drug paraphernalia, and
on May 21, 2009, he pled guilty to the charges. The appellant never reported the arrests or
convictions and did not report to Dunkel after the Blount County arrests.
Dunkel stated that the arrest reports he received from Knox County and Blount
County listed the appellant’s address as 3710 Marvin Circle, Maryville. However, the
address Dunkel had on file for the appellant was 489 Cave Road, Friendsville. Dunkel said
the appellant never informed Dunkel he was moving or sought Dunkel’s permission to move.
Dunkel acknowledged the appellant had verified employment with Tri-State
Refractories and with KK Masonry.
The appellant testified that he was thirty-six years old and had graduated from high
school. He was divorced with one child, and he paid child support of $100 per week,
depending on his earnings. The appellant explained that his work was seasonal and that
masonry was the only trade he knew.
The appellant stated that he pled guilty to growing forty-two marijuana plants. He
acknowledged that he had used marijuana, though not as frequently as his ex-wife, and that
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he grew the marijuana so he did not have to buy it during the winter when his income was
decreased.
The appellant acknowledged that he used marijuana, cocaine, and oxycodone with his
ex-wife before his October 2008 visit with Dunkel. He called his behavior “stupid” and
maintained that he had been “clean” since the failed drug test. The appellant said although
he did not recall a drug and alcohol assessment being a condition of his probation, Dunkel
had made him aware of this requirement. The appellant conceded that he did not have an
assessment, but he maintained that he did not have a driver’s license and often had
transportation problems.
The appellant said he was arrested in Knox County for a 2005 simple possession
charge, and he had not paid the fine of over $1000. He said he spent three days in jail before
his mother paid the outstanding fine. The appellant acknowledged that he did not tell Dunkel
about the Knox County arrest or about his failure to pay his fine.
The appellant said that his Blount County arrest occurred when he was pulled over on
his way home from work because of a defective light. Police then discovered the appellant’s
license had been suspended. The appellant said the car he was driving belonged to his
brother; he did not know there was drug paraphernalia in the car until police found it. He
stated he pled guilty in exchange for a thirty-day sentence, which he had already served. He
conceded that there were other times he drove on a suspended license but was not caught.
The appellant said his employer wanted him back at work, and he wanted another
chance to prove that he could pay his fines and costs and abide by the rules of probation. He
said he needed to work to support his child.
Based upon the foregoing, the trial court found that the appellant violated the terms
of his probation
[b]y being arrested for failure to appear, apparently to pay on the
simple possession; by picking up a new charge of driving on a
suspended license and drug paraphernalia by the City of Alcoa;
by failing to report; by failing to keep his probation officer
apprised of his address; by failing a drug test and testing positive
for marijuana, cocaine, and oxycodone; by failing to have his
alcohol and drug assessment; by failing to pay his probation
fees, court costs, and fines.
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The court ordered the appellant to serve one year of his sentence in confinement and the
remainder of the sentence on intensive probation.
On appeal, the appellant admits he violated the terms of his probation and does not
challenge the revocation. However, the appellant contends that the trial court should have
imposed periodic confinement on the weekends and allowed the appellant to work during the
week to earn money to support his child and pay his court costs and fees. Accordingly, the
appellant argues that “[t]he imposition of continuous confinement as opposed to periodic
confinement and supervision as a consequence of the violations in this case is an abuse of
discretion.”
Generally, upon finding by a preponderance of the evidence that the appellant has
violated the terms of his probation, a trial court is authorized to order an appellant to serve
the balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and
-311(e) (2006); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests
in the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An
abuse of discretion exists when “the record contains no substantial evidence to support the
trial court’s conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50
(Tenn. Crim. App. 1995).
As we noted, the appellant does not dispute the violation or revocation of his
probation. Moreover, we observe that the appellant’s violations are amply supported by the
record before us. Therefore, it was within the trial court’s authority to order the appellant to
serve his original sentence in confinement upon revoking the appellant’s probation. See
Tenn. Code Ann. §§ 40-35-310 and -311(e); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.
Crim. App. 1991). The trial court did not do so and instead granted the appellant the largess
of split confinement. We conclude that the trial court did not err in sentencing the appellant
to split confinement following the revocation of his probation. Accordingly, the State’s
motion is granted. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of
the Court of Criminal Appeals.
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NORMA McGEE OGLE, JUDGE
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