# FILED
August 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 03C01-9708-CR-00356 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. JERRY BECK, Judge ROBERT JOSEPH BACON, ) ) (Sentence Revocation) Appellant )
For the Appellant : For the Appellee : Terry L. Jordan John Knox Walkup Asst. Public Defender Attorney General and Repor ter P. O. Box 839 Blountville, TN 37617 Clinton J. Morgan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Stephen M. Wallace Nashville, TN 37243-0493 District Public Defender H. Greeley Wells, Jr. District Attorney General Teresa M. Smith Asst. District Attor

ney General P. O. Box 526 Blountville, TN 37617

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant appealed hi s convicti on and the Stat e file d a cross-appeal , all eging that the trial court improperl

y sentenced t he appellant to the Community Corre ctions progr am. Judge Welles, writi ng on behalf of a unanimous panel, a ffirmed the appel lant’ s convicti on for rape, but rem anded this case for a dete rmina tion as to the exact m anner o f senten ce imp osed. State v. Bacon , No. 03C01-9608-CR-00308 ( Tenn. Crim. App. at

Knoxvill e, Jan. 8, 1998). In so holding, Judge W elles obs erved, “W hat the se ntence was rem ains a m ystery. The ju dgm ent form reflects that the Defendant was sentenced t o eight y

ears in Community Corrections and speci fies an evaluation in Hay House.” Bacon , No. 03C01-9608-CR-00308. We note that the present appeal has reac hed this c ourt p rior to the fin al sen tenc ing de term inatio n of th e app ellant ’s dire ct ap pea l. 2 OPINION
The appellant, Robert Joseph Bacon,seeks review of the Sul livan County Criminal Court’s or der revoki ng the app ellant’s previousl y imposed non-inca rcerative status following his conviction for rape. Specifically, he contends that the evidence at the revocation hearing failed to support the alleged violation by a preponderance of the evidence.

After consideration of the record before us, we affirm the judgment of the trial court.
Background
On April 17, 1996, a jury found the appellant guilty of rape, a class B felony. Although the focus of this appeal challenges the sufficiency of the revocation evidence, our first task is to determine the manner of service of the sentence imposed by the trial cour t following the appellant ’s conviction for rape. 1 The judgment of conviction, dated May 28, 1996, reflects that the Honorable Frank Slaughter imposed an eight year sentence to both the “TDOC” and the “Community Based Alternative: John R . Hay House.” The judg ment further provides “Defendant placed in Hay House for evaluation. Case to be reviewed on 8/30/96.” On August 30, 1996, the trial court or dered a split confinement of the eig ht year sentence with one year to be served at the John R. Hayhouse. On September 3, 1996, the trial court transferred the appellant ’s supervision to the Alternative Community2 Rega rdless o f whethe r we con strue the senten ce as b eing one of Com mun ity Corrections o r probati on, our anal ysis remains the same as our supreme court has equated a Comm unity

Corrections sentence wit h one of probation in terms of the same principl es being applicab le when d eciding w hether a revoca tion of the s entenc e was p roper. State v. Parker , No. 02C01-9111-CC-00245 (Tenn. Cri m. App. at Jackson, Feb. 9, 1994) (citing State v. Harkins , 811 S.W .2d 79, 83 (Tenn. 1991)). 3 Corrections Program for the remainder of the eight y ear sentence. We glean from the record that the John R. Hayhouse, Inc., also referred to as the Hay House, is a Community Corrections treatment center located in Ki ngsport. See Tenn. Code Ann. § 40-36-302(a)(2) (1990); see, e.g. , State v. Boston , 938 S.W.2d 435, 437 (Tenn. Crim. App. 1996); State v. Hale , No. 03C01-9411-CR-00 404 (Tenn. Cr

im. App. at Knoxville, Aug . 4, 1995). To add to the confusion, at the revocation proceeding, both the State and defense co unsel referred to the appellant’s sentence status as a “probated sentence.” 2
In February 1997, prior to resolution of the appellant’s direct appea l of his conviction, the appellant met Tiffany Goff, a twenty year old East Tennessee State University student, at an aerobics class hel d at the school gym. The appel lant and Ms. Goff exchanged telephone numbers and agreed to make plans to pla y racquetball. Ms. Goff later decided to cancel her plans with the appellant af ter his behavior had changed duri ng an initial telephone conv ersation. The appellant continued to telephone Ms. Goff. On one oc casion, she returned the phone c all, but the appellant was not at home. Ms. Goff testified that during the se initial conversations with

the appellant, she comment ed that she w

as having

problems with her boyfriend, to which the appellant asked her if her “boyfriend w anted too much sex.” After this incident, the appellant continued his visits to the aerobics class, but did not partici pate in the exercise. R ather, the appellant would talk with Ms. Goff prior to class. During one of their conversations, the appellant state d, “if it seems lik e I’m flir ting with you , I am.” Th e appella nt also sh owed up at the gym when Ms. Goff had planned to play racquetball with A

ngie “A.C.” Carraw

ay, the aerobics instructor. While the tw o attempted to play racquetb all, the appellant “kept looking in the window

s “ despite their attempts t o make him “go away.” The3 The a ffidavit provid ed, in part: Rule #1 To Wit: “I wi ll obey the laws of

the United States, or any state in which I may be as well as any mu nicipal ordin ances .” On or a bout 4/30 .97, Eas t Tenn essee State Un iversity (ETS U) Pub lic Safety Officer Marl ys Tester swore t o an Affidavi

t of Complaint

allegi ng that t he offender com mitte d the offe nse of sta lking - ET SU C ase # 970 430 084 9 in Jo hns on C ity, Washington County Tennessee. A $10, 000 Bond was issued. The Case is set for trial on 6/3 /97 in W ashingto n Cou nty Gene ral Sess ions Co urt. 4 appellant then walked onto the court where he and “A.C .” got involved i n an argument. The appellant continued to telephone Ms. Goff, approximatel y twenty phone calls a week. This behavior continued for three months. Ms. Goff testified that the appellant’s behavio r caused her to fear for her ow n safety. Specifically,she explained that “he kept acting weird, like when he’d get mad if you w ouldn’t do anything with him. . . . he just seemed real aggressive when you’d say no to him.” The appellant’s behavior was reported to the police and he was subsequently arrested on a charge of stalk ing.
On May 6, 1997, Community Corrections case officer Br ian Brummett filed an affidavit of violation of Community Corrections superv

ision alleging that the appellant had violated “Rule # 1 of the Community Corrections order” by committing the offense of stalking. 3 A revocation hearing was held on

July 14, 1997, at whic

h time the appellant entered a plea of not g uilty to the offense of stalking . On July 25, 1997, th e trial cou rt found that the proof su pported the allege d violatio n by a preponderance of the evidence and or dered that the appellant serv e the remainder of his eight year sentence in the Department of Correction. The appellant filed his notice of appeal of this revocati on on August 21, 1997.

Analysis
In his only issue pres

ented for our review, the appellant contends that the tri al court erroneously found the pr oof sufficient to support a finding that the appellant5

violated a condition of his Community Corrections sentence. Specifically, he asserts that the evidence failed to establish that the appellant’s ac tions caused Ms. Goff to reasonably fear assault or bodily i njury or that the appell ant “followed” Ms. Goff as defined by the statute.
“A person commits the offense of sta lking who intentionally and repeatedly follows or harasses anothe r person in such a manner as w ould cause that person to be in reasonable fear of being ass aulted, suffering bodily i njury or death.” Tenn. Code Ann. § 39-17-315 (1997). The o ffense further defines the term "follows” to mean “maintaining a visual or physical proximity over a period of time to a specific person in such a manner as w ould cause a reasonable person t o have a fear of an assault, bodily injury, or death.” Tenn. Code Ann. § 39-17-315 (a)(2)(A).
In a revocation proceeding , the State bears the burden of establ ishing the violation alleged i n the notice by a preponderanc e of the evidence. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). The trial court r etains the discretion, inc luding resolving conflicts

in the evidence and judgi ng the credibility of the witnesses, to determine whether the accus ed has violated the conditi ons of the Community Corrections sentence. Harkins , 811 S.W.2d at 82; State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the evidence is sufficient to s upport a violation of the condition and the trial co urt, exercising i ts discretion, decides to revoke the Community Corrections sentence, the court must place i ts findings of fact and the reasons for the revocation on the record. See State v. Hardy , No. 02C01-9503-CC00074 (Tenn. Crim. App. at Jackson, Feb. 7, 1996). On appeal, the reviewing court must affirm the trial court’s d ecision unless “the reco rd contains no substantial evidence to support the conclusion of the trial [court] that a violation of the condition . . . has occurred.” Harkins , 811 S.W.2d at 82.6 In the present case, we conclude that the record contains suff icient evidence to support the trial court ’s conclusion. The trial court properly accr

edited the testimony of Ms. Goff and Angie “A.C.” Carraway and rejected the appellant’s version of the events. The c ourt found: The Court, therefore, is of the opinion that a reasonable person could fear that which is required by the statute. The young lady was, although young, was

a college student. The acti ons were great. The Court first thought the parties - - - it started out, they were more or less friendly . . . where they do start out friendly, then they get - - it becomes an overbearing ty pe relationship.

. . . . . . [T]he Court’s of the opinion [that] the State has made out [by a] preponderance [that] the Defendant has v iolated the terms and conditions of his probation. H e’ll be required to se rve his sentence. We agree that the appellant’s actions constituted “following” w ithin the definition prescribed by the statut e. Moreover, a reasonabl e person in Ms. Goff’s positio n would have been fearful or appr ehensive of bodily harm or injury to their per

son considering the appellant’s behavior. We con clude that the record contains ample evidence to support the tr ial court's finding that the appellant violated Rul e #1 of the Community Corrections order. The record reflects that the trial court made a conscientious decision in revokin g the sentence a nd the court pla ced its findings and conclusions on the recor d. Because we find no abuse of discretion, the judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JOHN H. PEAY, Judge

__________________________________ JOSEPH M. TIPT ON, Judge