State of Tennessee v. Demetree Tyon Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 22, 2012
STATE OF TENNESSEE v. DEMETREE TYON HARRIS
Appeal from the Criminal Court for Knox County
No. 92250 Mary Beth Leibowitz, Judge
No. E2012-00465-CCA-R3-CD - Filed October 24, 2012
The Defendant, Demetree Tyon Harris appeals the Knox County Criminal Court’s order
revoking his probation for aggravated assault and misdemeanor theft and ordering the
remainder of his five-year sentence into execution. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.
Mark E. Stephens, District Public Defender; and Jessica Greene, Assistant Public Defender,
for the appellant, Demetree Tyon Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Jeff Blevins, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant pleaded guilty on August 5, 2009, to aggravated assault and
misdemeanor theft. He received a five-year sentence to be served in split confinement of
time-served plus thirty days and the balance on probation. He was also ordered to pay $1800
in restitution. On December 11, 2009, the Defendant’s probation officer filed a probation
violation report alleging that the Defendant failed to obtain employment, failed to report to
his probation officer, failed to pay court costs and probation supervision fees, and engaged
in assaultive, abusive, threatening, and intimidating behavior. On April 29, 2010, the trial
court waived the Defendant’s probation fees and dismissed the petition for revocation of
probation. On April 29, 2011, the Defendant’s probation officer filed a second probation
violation report alleging identical violations. On May 27, 2011, the court found that the
Defendant violated his probation, revoked his probation, and placed him on enhanced
probation.
On July 7, 2011, the Defendant’s enhanced probation officer filed a probation
violation report alleging that the Defendant failed to abide by his 6:00 p.m. curfew and
engaged in assaultive, abusive, threatening, or intimidating behavior. On January 25, 2012,
the Defendant’s probation officer moved to amend the probation violation warrant and added
a new violation against the Defendant for engaging in assaultive, abusive, threatening, or
intimidating behavior.
At the revocation hearing, Faye McNutt, the Defendant’s enhanced probation officer,
testified that enhanced probation was the next step after a defendant was unsuccessful at
regular probation. She said she interviewed the Defendant on May 18, 2011, after a violation
report of his regular probation was filed. She said she spoke with a social worker at the
Public Defender’s Office and determined the conditions for his enhanced probation. She said
the Defendant was allowed to continue living with his mother because she lived within one
and one-half mile of the Public Defender’s Office where the Defendant was seeing a social
worker. She said she wanted the Defendant to participate in numerous classes. She said that
she wanted the Defendant to be placed on electronic monitoring but that it was not available
until later. She thought these conditions would give the Defendant the best chance of
success.
Ms. McNutt testified that the Defendant was released to enhanced probation on May
26, 2011, and that the Defendant had issues with his curfew shortly thereafter. She said the
Defendant contacted her on June 28, 2011, to inform her that he was in the hospital after
being run over by a car. She stated the Defendant told her that the incident occurred on the
previous day, June 27, at 5:50 p.m. at a Hardee’s restaurant and that he was trying to make
it home for his 6:00 p.m. curfew when an argument arose between him and his traveling
companion, whose identity the Defendant would not reveal. She said the Defendant told her
that he had “whooped his companion’s a--” and that the companion, upset about the beating,
ran over him with his car. She said the Defendant told her that the police were not notified
and that he was taken to the hospital by ambulance from the Hardee’s parking lot.
Ms. McNutt testified that she learned the Defendant’s statements were false when she
received an “FYI Field Interview” from the Knoxville Police Department taken by a police
officer that showed the Defendant was out at 12:44 a.m on June 28. The field interview
showed that the Defendant told the officer that he was in violation of his curfew. It also
showed that the Defendant had a compound fracture to his right shin, that he would not tell
the officer what happened, that Jerry Waterson attempted to help but was the focus of the
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Defendant’s anger, and that the Defendant stated “he would make Waterson pay for the
injury.” Ms. McNutt said the field interview alerted her to the Defendant’s violation of his
curfew. She stated that the Defendant was a violent offender who continued to engage in
violent acts and to disregard the rules of his probation and that enhanced probation had
nothing to offer him to ensure the safety of the community.
On cross-examination, Ms. McNutt testified that the Defendant was on enhanced
probation a little over one month before she filed a probation revocation warrant. She said
that she did not recall performing a drug screen on the Defendant and that if he had failed a
drug screen while she was supervising him, it would have been on his violation report. She
said that one of the conditions of the Defendant’s probation was that he attend “Cherokee.”
She said that the Defendant stated he attended the program but that she never received
verification. She said that another condition of the Defendant’s probation was the ankle
monitor but that it did not become available until August.
Ms. McNutt testified that after the Defendant began enhanced probation, he reported
to her twice and that she made home visits on June 20 and June 28. She said the Defendant
called her from the hospital after the incident. She said that she knew the Defendant had leg
surgery but that she thought the phone call was before the surgery. She said she did not
communicate with the Defendant after she filed the probation revocation warrant, which was
after she verified with the Police Department that the Defendant lied to her about the incident
at Hardee’s. She said that she did not communicate with the hospital concerning the
Defendant’s condition and that she did not know if he was on pain medication.
Ms. McNutt testified that she spoke with defense counsel before the revocation
hearing and that they differed on how the series of events occurred after the Defendant was
hit by the car. She said she had to file a revocation warrant after the incident at Hardee’s
because it was a violent act and he was violent. She said that counsel was concerned the
Defendant would not receive proper medical treatment if he was arrested but that she told
counsel the Sheriff’s Department was responsible for that. She said she always encouraged
defendants on probation to surrender when there was an arrest warrant.
The Defendant read a letter he prepared for the trial court. He said he made mistakes
and described a difficult childhood. He said he wanted to raise and provide for his two
young children. He said that he had metal rods and screws in his leg, that he had just begun
to walk again, and that he still needed help at times. He said he wanted to finish school,
complete physical therapy and his mental health treatment, and complete his probation. He
said that he had a temper but that with the support of the court, his social worker, and his
psychiatrist, he could finish his probation.
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Before making its ruling, the trial court noted that the Defendant had a number of
problems on probation. The trial judge said that although the Defendant made good progress,
he “got [himself] into trouble again,” did not keep his appointments, and “wanted to run his
life the way he wanted to run it until somebody ran over his leg and changed his life again.”
The court noted that the Defendant had “a lot of promise” but that he had problems with
truthfulness, violence, and disobeying court rules. The court found that the Defendant had
gone through “three rounds” with a probation officer and “one or two rounds” more with an
enhanced probation officer and that there were no other alternative placements for the
Defendant when, in just over a year, “[h]e violated every condition that he had . . .” In its
written order, the court found that the Defendant had “been guilty of violating the laws of
this State, and ha[d] otherwise violated the conditions of probation.” The court revoked the
Defendant’s probation, ordered his sentence into full force and effect, and gave him 246 days
of credit for time served. This appeal followed.
A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a
trial court revokes a defendant’s probation, its options include ordering confinement,
ordering the sentence into execution as originally entered, returning the defendant to
probation on modified conditions as appropriate, or extending the defendant’s period of
probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310 (2010); see State v. Hunter,
1 S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation proceeding
will not be disturbed on appeal unless there has been an abuse of discretion. See State v.
Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In order for this court to find an
abuse of discretion, “there must be no substantial evidence to support the conclusion of the
trial court that a violation of the conditions of probation has occurred.” State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001).
I
The Defendant contends that the trial court erred by considering the incident at
Hardee’s as a violation of his probation. The State contends that the trial court properly
found that the incident at Hardee’s violated the Defendant’s probation. We agree with the
State.
The Defendant argues that the trial court “relied more on interpretation than on direct
fact” in finding that the incident at Hardee’s constituted a violation of probation. The
evidence shows that the Defendant told the officer who conducted a field interview that he
was in violation of his curfew and that he was going to “make Waterson pay for the injury”
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to his leg. The field interview was taken on June 28, 2011, at 12:44 a.m., over six and one-
half hours past the Defendant’s 6:00 p.m. curfew. Ms. McNutt testified that the Defendant
told her that he “whooped his companion’s a--” and that the companion ran over him with
his car. Ms. McNutt’s testimony and the police officer’s field interview were undisputed and
showed that the Defendant was out past his 6:00 p.m. curfew and engaged in assaultive,
abusive, threatening, or intimidating behavior in violation of his probation. The trial court
did not err in finding that the Defendant violated the special conditions of his probation and
revoking the Defendant’s probation.
II
The Defendant contends the trial court abused its discretion by revoking his probation.
The State counters that the trial court properly revoked the Defendant’s probation. We agree
with the State.
We conclude that the trial court’s determination that the Defendant violated the
conditions of his probation was supported by a preponderance of the evidence and that the
court did not abuse its discretion in revoking his probation and ordering him to serve his
sentence in confinement. By his own admission, the Defendant violated the terms of his
probation. According to the field interview, the Defendant admitted to being out past his
6:00 p.m. curfew. He also admitted to Ms. McNutt that he “whooped his companion’s a--,”
a violent behavior. Moreover, the evidence supports the court’s determination that the
Defendant’s efforts at completing probation were unsatisfactory.
The Defendant argues that his uncorroborated confessions are insufficient to revoke
his probation because the statements were “not made by a man of sound body and mind.”
He argues that he suffered traumatic injuries and “was most likely on strong pain
medication.” No evidence is in the record showing that the Defendant was taking pain
medication at the time of his statements. A defendant’s admission alone is substantial
evidence to support a trial court’s revocation of his probation. See State v. Bryan James
Farve, No. E2008-00939-CCA-R3-CD (Tenn. Crim. App. March 23, 2009).
Notwithstanding the Defendant’s admissions made after his injury, he was out past his
curfew according to the date and time of the field interview, and the officer noted on the
interview that Mr. Waterson was “obviously the focus of [the Defendant’s] anger.” The facts
in this case and the Defendant’s failure at past probation opportunities were sufficient proof
to support the court’s revoking the Defendant’s probation.
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III
The Defendant contends the trial court erred by not considering less restrictive
alternatives to revoking his probation. The State contends that the trial court properly
ordered the Defendant to serve his sentence. We agree with the State.
We are unpersuaded that the trial court abused its discretion in ordering the original
sentence into execution. At a previous revocation hearing, the court allowed the Defendant
the opportunity to remain on alternative sentencing by placing him on enhanced probation
for his noncompliance with regular probation. The Defendant did not comply with the
conditions of enhanced probation after that reprieve, and we note the Defendant violated his
enhanced probation just over one month of his receiving the reprieve. The court did not
abuse its discretion in imposing incarceration rather than allowing the Defendant an
additional reprieve.
In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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