### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE V. LARR Y KEITH HUDDLE
Direct Appeal from the Criminal Court for Sullivan County Nos. S40,505, S41,302-305 Phyllis H. Miller, Judge

No. E1999-00250-CCA-R3-CD - Dec ided

The defen dant, Larr y Keith Huddle, ap peals from the tri

al court’s order

revoking his commun

ity corrections sentence. He received an effective eight-year sentence for aggravated sexual batter y and four counts of passin

g a wort hless check. He argues that the revocation, based upon his use of alcohol and unauthorized transportation from work, is unsupported by the evidence. We hold that the evidence supports the tri al court’s finding that the defendant used alcohol and violated the conditions of his

behavior contract by having an unauthorized friend drive him home from work. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed

T IPTON , J., delivered the opinion of the court, in which W ADE , P.J., and W ITT , J., joined. Thomas McKinney, Jr., Kingsport, Tennessee, for the appellant, Larry Keith Huddle.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussma nn, Assistant Attorn

ey General; H. Greeley Wells, J

r., District Attor

ney General;

and RobertH. Montgomery, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION The defendant, Larry Keith Huddle, appeals as of right from the trial court’s revocation of his community

corrections sentence. He was convicted following guilty pleas to aggravated sexual battery, a Class C felony, and four counts of passing a worthless check, a Class A misdemeanor. He received an effective s enten ce of eight year s and was ordere

d to serve the sent

ence in community corrections at the John R. Hay House ( Hay H ouse). The trial court revoked the defendant’s community

corrections sentence, finding that the defendant consumed alcohol and rode home from work with an unauthorized person, a violation of Hay House rules. The defendant contends that the trial court erred in revoking community corrections because the evidence does not show that he used alcohol or that the rule re quiring him

to re ceive authoriza

tion to ride with some

one other than his father or aunt applied to him after he moved out of H ay Ho use and into nonre sidential treatme

nt. The state contends that the trial court properly revoked the community corrections sentence.-2-

At the revocation hearing, Mt. Carmel Police Officer Kevin Ewing testified that on April 27, 1999, at 12:24 a.m., he was dispatched to a car accident in

which the defend

ant was a passeng

er in
a car driven by Michael Ford. When Officer Ewing reached the scene four minutes later, Mr. Ford
was sitting in

t he driver’s seat, and the defendant was standing outside the car. Officer Ewing described Mr. F ord as too int oxicated to be driving. He said that Mr. Ford was disoriented, belligerent

and uncooperati

ve. He sa id tha t Mr. Ford smelled strongly of alcohol, staggered, and refused to take a breath test. He said that Mr. Ford admitted drinking tequila. He also testified that Mr. Ford had two plastic

b ags with small amoun

ts of marijuana re

sidue and rolling pa

pers on his person.
Officer

Ewing testified that he spo ke w ith the defendant after determining that he was not seriously injured in the accident. He said that the defendant had a slight odor of alcohol about h

im and that he asked the defendant if he had been drinking . He said that the d efendant initiall

y replied that he had not but that when he asked the defendant again, the defendant stated, “well, yeah, I’ve had a couple of beers, but I’m not intoxicated or nothing like that.” Officer Ewing said that he did notfind any alcohol inside the vehicle. He said that the accident occurred about five minutes from the defendant’s aunt’s house, where the defendant was living.

Todd Tho mpson, a case

officer at Hay H

ouse, testified tha

t when the defend

ant was first admitted as a resident, th e defenda nt signed a behavior contract and a court order specifying and acknowledging the conditions of his release into Hay House. According to Rule 12 of the order, the defendant was to follow all Hay House rules. Rule 3 of the beh avior contract provides that the defendant is not to use or possess any form of intoxicants or drugs. On February 19, 1999, the defendant signed a statement setting forth additional rules. The statement provides that the defendant can ride only with his father or his aunt and that Hay House staff must approve the people with whom the defendant rides to and from work.

Mr

. Tho mpson testified that the defendant was released into Phase II, nonresidential treatment on April 4, 1999. The defendant signed a Phase IIAgreement which was admitted into evidence. Rule 7 of the agreement provides that the defendant is to abide by the Hay House behavior contract as if he were stil

l a resident. Mr. Thompson testified that upon the defe

ndant’s release

into nonresidential treatment, the defendant was not allowed to ride with anyone but his aunt or father. Mr. Thompson testified that the defendant called the Hay House on April 26, 1 999, at 5:00 p.m. to report car trouble.

Kenneth Whitten, a residential mana g er at Hay House, testified that he spoke with the defendant when he called on

April 26 at

5:00 p.m. to report t

hat he had car tr

ouble but was going t

o work. He said that the de

fendant did not re

quest permission to

ride with an unauthorized person and that he did not give the defendant permission. He said that the defendant was allowed to ride only with his aunt or father and that he assumed the defendant’s aunt would take him to work. Penny Hawk, a manager at Ryan’s Steakhouse, testified that the defendant worked at Ryan’s and that on April 26, the defendant clocked out at 10:30 p.m. He then went to the break

area to wait on a ride. She said

that she unlocked the door for the defendant to leave at 11:40 p.m. She stated-3-

that Ryan’s does not serve alcohol and that she saw noindication that the defendant had anything to drink while at wor

k. She said that the d

efendant a

sked her to r emember what time he left that night. Michael Ford testified that early in the day on April 26, the defendant asked him for a ride homefrom work. He sai

d that he forgot an

d was late picking up the defendant. He said that he did not have any alcohol in his car when he picked up

the defendant a

t 11:40 p.m. He said that on the way to the defendant’s aunt’s house, he stoppe d for g asoline, and the defendant paid him three dollars for

the gas. He denied buying alcohol or consuming any alcohol while he took the defendant home. He admitted that he drank nine or ten shots of tequila earlier at a party.

K ay Webb, the defendant’s au nt, testified that th

e defendant live

d with her followin

g his release from Hay House. She said that her house was 2.7 miles from the accident. She said that she had been transporting the defendant to and from work during the week

before the acc

ident because his car was not work

ing. She said

that on the 26 th , she took the defendant to work but that when he calledher on his break at

about 9:00 p.m., she

told him she was sick

and could

not drive. She said that the defendant called back a few minutes later

and told her that Mr

. Ford would take him

home. She said that she he

lped clean the de

fendant after t

he wreck and tha

t he did not smell of a

lcohol.

The defendant’s father testified that he simulated the defendant’s trip home from Ryan’s on the 26 th . He said that on a Monday at 11:40 p.m., he drove from Ryan’s to the gas station, bought three dollars worth of gas, then drove to the accident scene. He said it took him twe nty-n ine minutes. He said that the defendant could not reach him on the night of the accident to ask for a ride because he hadgiven the defendant his pager. He admitted that he was home that night and that his telephone was working, but the defendant never called.

The defendant testified

that he had been driving himself to work until his car stopped running
on the 26 th . He said that he a rranged for his a

unt to take him

to work and for Mr. Fo

rd to take him home. He said that he spoke with Mr. Whitten at Hay House, who told him to have his aunt or a friendtake him to work. He said that other peop le had taken him to work previously with Hay House approval. He said that

after he clocked out of

work at 10:30 p.m., h

e waited on Mr. For

d until 11:40. He said that he tried t o call his father and his aunt but that neither answered. He denied using alcohol that night and stated that he has Crohn’s disease, which is inflamed by alco

hol. He said

that when Officer Ewing a

sked him if

had been drinking, he replied that he “wouldn’t drink the first beer
or two” because it would get him in trouble. He admitted that he use

d to be a heavy drinke

r. He said that he arranged during the day for Mr. Ford to pick him up from work on the 26 th but that he did not tell his auntuntil he calledher from work at 9:00 p.m. He said that he did not consider the original Hay House rules to

be in effect onc

e he was placed i

n nonresidential t

reatment.
The trial court found that the defendant violated the terms of his community corrections sentence. The trial court

accredited the testimony of Officer Ewing and disbelieved the de

fendant. It stated: I find that you violated community corrections, and that you have c onsume d alcoholic beverages, and

you admitted even though you denied today under oath, I-4-

don’t believe you under oath today. I find that you viola ted the rules of c

ommunity corrections by having somebody who was not approved, pick you up at Ryan’s and drive you home. Your testimony about calling y our aunt, not being able to ge t in touch with your father, no t be ing able to get your aunt to answer the phone. No answer at either one of those places. I find that that is not credible.

Trial courts have authority to revoke a community correctionssentence upon a finding, by
a preponderance of the evidence, that the defendant has violated the conditions of the sentence. State
v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991); Tenn. Code Ann. § 40-35-311. If the evidence of a violation is su ff

icient to enable the trial court to make a conscientious and intelligent judgment regarding revocation, that judgment will not be disturbed on appeal. Id.

The defen dant first conten ds that the evidenc

e is insufficient t

o support a finding t

h at h e consumedalcohol. He argues that the evidence shows that he did not drink anything while at work, that he and Mr. Ford we

nt straight home

from Ryan’s, stopping only for gas, and that no alcoholic beverages were found in Mr. Ford’s car. How ever, the trial court accredited Officer Ewing’s testimony that

the defendant sme

lled faintly of alc

ohol and admitted ha

ving one or two bee

rs. The defendant’s use of alcohol was proven.

The defendant furth

er contends that t

he trial court er

red by finding that

h e violated Hay House r ules by riding with an unauthorized person. He argues that he did not believe that th e statement he signed on February 19, which contains the condition that the defendant seek approval before riding to and from work with persons other than his aunt or father, continued to apply once he achieved nonresident status. He further contends that he did advise Mr. Whitten on April 26 that he would need a friend or his aunt to drive him to and from work. Although the defendant contends he did not believe that the Hay House behavior conditions applied to him when he entered into nonresidential status, the agreeme nt he signed upon entering into Phase II specifically provi ded tha t he was to abide by Hay House rules a

s if he were still a resident. One of the rules, as provided in the s

tateme nt he signed on February 19, was that he receiveapproval before riding to and from work with anyone other than his au nt or father. The defendant argues that his be

lief that the rule

s in the Fe

bruary statem ent no longer appl ied is reasonable

in light of the fact that he was allowed to drive himself to work as a nonresident, which he says conflicts with the rule in the state ment that he canno t possess a car. H

owever, the rule actually provides that he cannot have a car during residence

. Obviously, the terms of the rule caused its application to cease once the defendant entered nonresidential treatmen t. The rule

requiring authorization of transportation, however, contains no such limitation. The defendant’s contention that he repor ted his need to ride with a friend is refuted by Mr. Whitten’s testimony that the defendant made no suchrequest. The trial court disbelieved the de

fendant, and the

record supports its finding of a violation.

We conclude that material evidence exists in the record to justify the trial court’s revocation decision. In consideration of the foregoing, we affirm the trial court’s order revoking the defendant’s-5-

community

corrections sentence and sentencing t he d efendant to eight years in the custody of the Department of Correction.