### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 6, 200 6
ST A TE OF TE N N ES SE E v
. JA M ES HO WA R D TH EU S, III

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. 00-905 Donald H. Allen, Ju dge

No. W2005-02426-C CA-R 3-CD - F iled October 2, 2006

The de fenda nt, J ames How ard The us, I I I , enter ed a best interest plea to fac ilitation of rape of a child. He wa s sentence d to eig ht y ear s in the Tennesse e De partment of Corr ection, suspende d afte r ser vice of ele ven months and twenty -nine day s, with the rema inder on intensive pr obation. There afte r, the trial court r evoked the defe ndant’s probation and place d his sentence into effe ct. On appeal, the defe ndant cha lleng es the trial c ourt’s re vocation of his probation. Upon our revie w of the re cord and the pa rt ie s’ brie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J.C. M C L IN , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES , J ., joined. G AR Y R. W ADE , P.J ., not participating

.
Gre g ory D. Go o kin , A s s is ta

n t P u b li c D e f

e nder, Jackson, Tenne ssee, f or the a ppellant, J ames How ard T h e u s , III

.
Paul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; B ri a n Clay John so n, As sis ta nt A tto rn e y Ge ne ra l; Jer ry Woo da ll, Di stric t A tto rn e y Ge ne ra l; a ndShaun A. B ro wn , A ssi stant D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.
OP IN ION

BACK GR OUND

The defe ndant was indicted for rape of a child and espe cially ag g ravated sexual ex ploitation of a min or . T he de fe nd a nt e nte re d a be st- int e re st p le a in the fi rs t c ou nt t o th e le sse r- inc lud e d o ff e ns e of fa cilitation of rape of a c hild and the sexual e x ploitation cha rg e was dismiss ed. He wa s sentence d t o e i g h t ye ar s i n t h e D e p ar t m e n t o f C o rr e c t i o n , s u s p e n d e d a f

t e r s e r v i c e o f e l e v e n m o n t h s a n d t w e n t ynine day s, with the remainde r to be served on intensive probation. Am o n g t h e co nditions of the defe ndan t’ s p r o b a ti o n w e r e th a t h e o b e y a ll la w s o f

th e U n it e d St a te s , a s w e ll a s a n y mu n ic ipa l
o rd i n an ce s ; n o t u s e i n t o x i ca n t s o f a n y k i n d t o ex ce s s , o r u s e o r h av e i n h i s p o s s es s i o n n ar co t i c d ru gsW e no t e t hat a grand jury ret urned a no t rue bil l on t he charge agai nst t he d efend ant

. H o wever, t he grand 1 jury ’ s f ai l ure t o ret urn an i nd i ct m ent do es not af fect the t ri al c o urt ’ s p rob at i o n revo cat i o n d eci si o n, a s t he t ri al c o urt heard

a n d a c c re d ited the w itne sse s’ testim o n y.

It ap p ears t hat M r. P hi l l i p s’ co ncl usi o n t hat t he d efend ant w as not s up p o sed t o be on t he sex offend er r egi st ry 2

was i ncor r ect

. Al t houg h t he new wordi ng i s mo r e expl i ci t , t he s t at ut es at t he t i me t he defendan t pl ed gu i l t y i ndi cat e t hat fac ili ta tio n o f ra p e o f a c h ild w a s a se x u a l o ff e n se

. See T e n n . C o d e A n n . § 4 0 -3 9 -1 0 2 (3 )( A )( x v ) a n d (x v ii)(1 9 9 7 ).
-2- or marijuana ; and observe any specia l conditions imposed by the court, including be ing pla ced on the sex offende r re g istry

.
On J anuary

8th and Marc h 13, 2003, the def endant’ s pro b at i o n office r filed pr obation violation reports alleg ing that the defe ndant had violated va rious conditions of his p ro b at i o n . On April 22, 2003, the tria l court iss ued an or der dismissing the a fore mentioned probation violations alleg ed in the re ports. On Aug ust 15, 2005, the defe ndant’s probation off icer filed anothe r probation violation report alleg ing that the defe ndant had be en with two under ag e tee nag ers in a motel r oom afte r 2:00 a.m., and he had wa ved knives at the teena g ers in a threatening manner . On September 19 , 2 00 5, a

pr ob atio n r e vo c a tio n h e ari ng wa s h e ld i n r e g ardto the 20 05 vio la tio ns

. At the re vocation hea

ring , Russell P hillips , the def endant’ s probation offic er, te stified that he took out a probation violation warrant a g ainst t h e d ef en d an t based on “ [c] ontributing to the de lin qu e nc y

of tw o mi no rs , u sin g int oxic a nts a ndno t ob se rv ing sp e c ia l con ditio ns [of his probation],” the spec ial condition being that he stay away from minors. Mr. Phillips stated that the defe ndant was a war e of the fac t that he had to stay away from minors bec ause that condition was listed on the sex offender direc tives and the sex offende r re g istry updates, whic h he sig ned. Mr. Phill ips further stated that the def endant wa s arr ested on Aug ust 1 5 , 2005 for c ontributing to the delinquency

of a minor. Mr. Philli ps expl ained that he had ca lled the def endant in to discuss the 1 inc ide nt w he n h e re c e ive d a c a ll f ro m a de te c tiv e c on c e rn ing the de fe nd a nt’ s c on ta c t w ith the min or s. Mr. Philli ps stated that af ter he re ceive d the ca ll, he called the police and the defe ndant turned himself in.

Mr. Philli ps testified that one of the specia l c onditions of the defe ndant’s probation was that he follow his probation officer ’s direc tives, and one of those direc tives was that he sta y away from any individual u nder e ighte en. Mr. Phillips st ated that he had g ener al conve rsations with the defe ndant ea ch month reminding him that he was supposed to stay away from minors.

On cr oss-examination, M r. P hillips stated that the Te nnessee Bur eau of I nvestig ation was supposed to take the de fenda nt off the sex offender reg istry “base d on the wording of fa cilitation” but never did. Mr. Phill ips elaborated that “[a]ccording to my understanding , fac i l itation was not in the wording of the sex offende r thing s, but they put it on this y ear

on Aug ust 1st,” and it applied retroa ctively

. Mr. Phill ips te stified that he rec eived anony mous c alls say ing that the defe ndant was

2

near the y outh communitycente r and he would tell the defe ndant he “ better not g et in trouble or I ’m g oin g to v iol a te [y ou ].” Mr . Ph ill ips a dmi tte d, ho we ve r, that he ne ve r s a w the de fe nd a nt at th e y ou thIt is t h e p o licy o f t h is c o u rt to no t re v e a l t h e na m e s o f m ino rs inv o lve d in se x u a l o ff e n se s. 3

-3- cente r. On re direc t examination, M r. Philli ps stated that the def endant sold clothes for a livi ng , but he did not have a

phy sical shop so he set up a stand.

C.K. testified that he wa s six teen y ear s old, and he kne w the def endant f rom Youth Villag e. 3 C. K. recal led that he sa w the de fe nd a nt d uring the day tim e on Au g us t 7, 20 05 wh ile he a ndhis fiftee n-y ear -old frie nd J

. C

. wer e talking to another f riend on North Roy al Street in Jackson, Tenne ssee. C.K. said that the defe ndant drove by and then stopped to ta lk to them, and they asked him for a ri de to a bu sin e ss n a me d So nn y ’s wh e re the y we nt i ns ide a ndpu rc ha se d s ome drink s. Whe n C. K. a ndJ.C. r e turne d fr om ins ide Son ny ’s , the de fe nd a nt as ke d the m if the y wante d to he lp him se ll c lothe s a ndCD s.

C

. K. t es t i fi ed t h at af

t er t h ey h el p ed t h e d ef

en d an t s el l t h e i t em s , t h e d ef en d an ts ai d “w e’ l l go riding around a nd find some people to talk to and hangout with for a minute,” a nd the def

endant took the teena g ers to his motel room at the Day s I nn. C.K. stated t hat i t was nighttime when they arrived at the motel r oom and they stay ed there for a while, and the defe ndant had a la dy friend c ome over

. C.K . s a id that th e de fe nd a nt’ s la dy frie ndle ft

aro un d 1 1:0 0 p .m., and he to ld the de fe nd a nt that it was time for

them to g o home. Howeve r, the def endant sa id he wante d to wait for his lady friend to come bac k befor e taking them home. C.K. stated that the def endant’ s lady

friend ne ver r eturne d so he and J .C. stay ed all night at the motel. C.K. expl ained that he and J.C . slept in one bed a nd the defe ndant slept in the other bed. C.K. testified that during the nig ht they saw the de fendant naked on his bed “playing w ith hi[ m] self.”

Be cause the def

endan t wa n t ed the boy s to help him sell again, C.K. testified that on the morning of Aug ust 8, 2005, the defe ndant drove him to his house to g et some clothes. The rea fter, they went back t o the defendant’s motel room. C.K. testified t hat t hey went swimming at the motel and then he aded home , but the defe ndant aske d for their help selling clothes ag ain. C.K. stated that he and J.C. both got permission to stay a sec ond night at the m o t el

. C.K. said that later on in the evening he and J.C. decided to leave beca use they “g ot suspicious

. ” He s ai d that they asked the defe ndant if they

could g et some air “ while he wa s smoking and drinking.” Then, onc e they g ot outside the motel room, they ran to a g as station and C.K. ca lled his uncle to come pic k them up. C.K. said that his uncle told them he could not pick them up so they walked to the Waf

fle House

. At the Waffle H ouse, C.K. and J.C. s aw a police off

icer and told him what happene d.
When asked why

he and J.C. were suspicious, C.K. stated that they wer e af raid the def

endant was g oing to molest them. C.K. said that the de fendant had been d ri n k i ng liquor and smoking marijuana when he and J .C. left t he mot el room. C.K. also stated that the de fendant offer ed them liq uo r a nd mari

juana , bu t the y did no t take a ny . C. K. fu rthe r s ta te d th at th e de fe nd a nt t ou c he d h is behind and told him “g ood job” af ter C.K. hustled a CD. C.K. testified he saw the def endant na ked
a nd play ing wi th him se lf the se c on d n ig ht, bu t th e de fe nd a nt n oti c e d th a t C. K. sa w h im s o h e pu t hi s clothes on.-4-

On cr oss-examination, C.K. testi fied that he and J .C. did not le ave the motel a fter seeing the defe ndant naked the first time bec ause the y wer e af raid the de fendant might g rab the m and pre vent them from leaving

. Howeve r, he admitted that he went back to sle ep. C.K. ac knowledg ed that the next m orning the defendant took him home t o g et m ore clothes, and he did not tell his family about what had ha

ppened the previous nig ht. C.K. conce ded that he knew something about a charg e in the defe ndant’s past, but he ha d “re cently forgo t ab o u t i t

. ” He further acknow ledg ed that his mother reminded him about the de fenda nt’s past afte r he ha d returne d home. C.K. testified that the defe ndant wave d knives at them but did not say anything while waving them. C.K. further testified that his mother g ot ang ry

at him for hang ing out with the de fendant. C.K. said that his mother w as also ang ry

that the def

endant did not fa irly

compensate him for helping sell his goods.

At the c on c lus ion of

the he ari ng , th e tr ia l c ou rt ma de the fo llo wi ng fi nd ing s: [The defe ndant] was ordere d to follow certain conditions of probation and .

. . two of tho se ru le s [w e re ] “ I wi ll not us e int oxic a nts of a ny kin d to exce ss or ha ve in m y possession or use nar cotic drug s or marijuana. ” T h at was one of the spe cific r ules of probation that he had to follow. Also, another rule is that he would observe any specia l c onditions imposed by the Court. Of course , he was found to ha ve bee n a sex offe nder be cause of the fac t that he was c onvicted of this particular off ense a nd he was plac ed under the Sex Offe nder D irec tives. Now, . . . Rule No. 9 say s, “I will not enter into contact with any

child under 18 unless an adult is prese nt whom my office r and my treatment provider ha ve appr oved in adva nce in writing as a chape rone.” So, I do cre dit the testimony of Mr. P h i l l ips when he’ s indicated that he has had
conver sations with [ the d e f e n d an t] , g e n e r a l c o n versations on more than one oc casion, that h e c a n n o t b e in a n y

k in d o f p r e s e n c e o r

h a v e a n y c o n ta c t w ith a n y

c h il d u n d er 18 y ear s of ag e. That’s one of the specia l conditions that he was orde red to follow.
Now, the Court doe s cre dit the testimony of Mr. Phill ips and also I cre dit the tes timonyof [C.K.] . Now, [C.K.] has testified that ba ck ea rly Aug ust of this y ear that he wa s in the c omp a ny of [the de fe nd a nt], he a nda no the r f ri e nd , 1 5 y e ar o ld friend [J .C.] , and on that particula r occa sion that the defe ndant

. . . stopped them and ta lke d to the m, a llo we d the m to ri de in the ve hic le wi th him , la te r carri ed t he se individuals, these two minor children, to [the defe ndant’s] hote l r oom at the Day s I nn on Holly wood so that they could hang out. H e indicate d also that they wound up . . . spending . . . the nig ht in the presenc e of [the def endant]. I t ’s also indicated that [t he defe ndant] inappr opriately exposed himself to the se 15 and 16 y ear old children du ri ng the mid dle of the nig ht. Al so , it do e s app e ar that the y sp e nt a no the r nig ht w ith him there at the hot el room and on that occa sion he also offe red both of the se y oung m e n a l c o h o l a n d a l s o o f f e r e d t h e mb o t h m ar i

j u a n a

. A n d a c c o r d i n g t o [C

. K

. ’ s] testimony , the def

endant wa s drinking liquor the re in their pr esenc e and a lso smoking
mari juana the re in the ir

pr e se nc e the re in this ho te l r oo m.-5- No w, y ou kn ow , th e se sp e c ia l c on dit ion s a re the re be c a us e [the de fe nd a nt] was not supposed to b e i n the company of minor childre n, espec ially not to be exposi ng them to alcohol, dr u gs , n arc otics, and, of c ourse, he ’s not even suppose d to b e us ing mari

juana him se lf a ndc e rt a inl y no t supp os e d to be usi ng int oxic a nts in excess, but it does appea

r to the Court that he wa s v i o lating both of those rules by drinking liquor and also smok i n g m ar i j uana the re in the pr esenc e of the se two children.
Of course, also, as I ’ve state d, he exposed himself to these minor childre n and ag ain that’s the r eason w e have these spec ial conditions is becaus e we d o n ’t want [t he def end an t] to even be in contact with minor childre n. Unfortunately , [t he defe ndant] has chosen on two diff ere nt occa sions even to be in contact with minor children.
Now, also, he failed to re port any incidental conta ct which the rule say s that if he doe s come in contac t that he is to report this incidental contac t to his probation of fi c e r w hic h h e did no t re po rt

. Of c ou rs e , thi s wa s mor e than jus t in c ide nta l c on ta c t, this was a deliber ate, willful conta ct in violation of the Court’s order s. Of c ourse, also, as I mentioned, he ha s – there is no positive drug scre en for marijuana , but I

do
cre dit the testimonyof [C.K.] when he s ay s that [t he def endant] was smoking marijuana there in his presenc e. . . .

No w, a s f ar a s him [wa vin g ] the kn ive s in the pr e se nc e of the se ind ivi du a ls in a threatening manner , that’s the other alleg ation in the war rant, but it doesn’t appea r to the Court that he wa s threate ning the se min o r children. O bviouslythey
ma y ha ve be e n p la c e d in so me fe ar a s a re su lt o f h is h a vin g the se kn ive s th e re in the ir prese nce, but I

don’t find that he threatened these children in any way . Obviously the testimonyhas bee n that they did become conce rned and certainly became suspicious by the way he was acting that something perhaps worse mi g ht have occur red and that was the r eason the y

did finally

leave the company

of [the defe ndant].

B ut the Cou rt

do e s f indthat [th e de fe nd a nt] c le arl y un derst oo d from h is
conver sations w ith Mr. Phil lips and also the rules that ha ve bee n g one over with . .

. his previous probation office r[s] , . . . that clea rly [t he defenda nt] knew that he was not to be any wher e involved with minor children.

So the Cou rt

fi nd s th a t he ha s, in fa c t, vio la te d the te rm s a nd c on dit ion s of his probation i n a subst antial way

. The Court fee ls like his probation should be revoke d and he s h o u ld b e o r d e r e d to s e r v e th is s e n te n c e in th e T e n n e s s e e D e p ar tm ent of Correc tions. . . .

AN AL YSI S-6-

On appe al, the def

endant a rg ues that the trial c ourt err ed by re v o k i ng his probation and placing his eig ht-y ear

sentenc e into eff

ect. Spec ifically , he asse rts that C.K. was c ompletelynoncre dible and his te stimony should not have been acc redited by the trial court. I nitially , we note that the decision to r evoke probation lies in the sound discretion of the trial c ourt. State v. Leach , 914 S.W .2d 104, 106 (Tenn. Crim. App. 1995)

. The trial court may revoke probation upon finding by a pre pondera nce of

the evidenc e that the de fen d an t h as v iolated the conditions of his or her probation. See Te nn . Co de An n. §§ 40 -3 5- 31 0, -3 11 (e ); State v. Hark ins , 811 S.W .2d 79, 82 (Tenn. 1991). Revocation of probation is subject t o an abuse of discre tion standard of r eview, r ather than a de novo sta ndard. Id. I f th e t ri al judg e has e x erc ised “c onscientious judgme nt in making the decision rather than a cting arbitra rily ,” then there is no a

buse of discr etion. Leach , 914 S.W .2d at 1 0 7

. Di s cr eti on is abused only if the re cord c ontains no substantial evidence to support the trial court’s c onclusion that a violation has occ urre d. Harkins , 8 11 S.W. 2da t 82 ; Sta te v . G re go ry , 946 S.W .2d 829, 832 (Tenn. Crim. App. 1997)

.
I n th e pr e se nt c a se , th e tr ia l c ou rt sp e c if ic a lly state d th a t it

a c c re dit e d th e te sti mon y

of bo th witnesses, Mr. Phillips and C.K. I n a probation revoc ation hearing, the cre dibilit y of the witnesses is f or the de termination of the tria l court. Sta te v . W all , 909 S.W .2d 8, 10 (Tenn. Crim. App. 1994)

. Acc ording to Mr. Phill ips’ testimony , the def endant violated the conditions of his probation by using intox icants and ha ving contac t w ith minor children. Acc ording to C.K.’s testimony , he and another minor wer e approa ched by the defe ndant and asked to he lp him sell hi s merchandise. After war d, the defe ndant took the two minor s b ac k t o his motel room where they later w itnessed the def

endant
nake d o n h is b e d to uc hin g him se lf . T he ne xt da y the bo y s a g a in h e lpe d th e de fe nd a nt s e ll h is
merc handise during which he touc hed C.K. on the behind. That nig ht, the defe ndant dra nk liquor and smoked marijuana in front of the minors and off

ere d the same to the boy s. The trial court ha ving
acc redited Mr . Phill ips’ and C.K.’s testimony , it is our vi ew the rec ord conta ins substantial evidence to support the trial court’ s conclusion that the def endant violated the conditions of his probation.

CO NC LU SION

Ba sed upon our r eview of the re cord and the parties’ b ri ef s , we aff irm the trial court’s
revoc ation of the de fenda nt’s probation.

___________________________________ J .C. McL I N, J UDGE