### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 21, 200 5

STA TE OF TEN NES SEE v. CH RIST OPH ER T. STA RN ES

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2002-D- 2192 Cheryl Blackbu rn, Judge

No. M2004- 02563-CCA -R3-C D - F iled Jul y 19, 2005

The de fenda nt, Christopher T. Starnes, ple d g uiltyto one count of se x ual battery and two counts of attempted ag g ravated robbe ry . He wa s sentence d to an ag g reg ate se ntence of ten y ear s with one y ear to be serve d in confineme nt and the balanc e to be served on intensive probation. Ther eaf ter, the tria l

c ou rt re vo ke d th e de fe nd a nt’ s pro ba tio n an d ord e re d him t o s e rv e the re ma ind e r o f h is s e nte nc e in confine ment. On appe al, the def endant c halleng es the trial c ou r t’s revoc ation of his probation. Upon

re vie w, we a ff

ir m th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

J.C. M C L IN , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P. J., and J O SEPH M. T I PTON , J ., joined.

Da vidM. Ho pk ins , N a sh vil le , T e nn e sse e , f or the app e lla nt, Christ op he r T . St arn e s.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B e nja min A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; Victor S. Johnson, I I I
, District Attorney Gene ral; and Rob Mc Guire, Assistant Di s t ri ct At torney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F acts

I n Aug ust 2003, the defe ndant pled g uilty to one count of sexual ba ttery and two counts of attempted ag g ravated robbe ry . He wa s sentence d to an ag g reg ate se ntence of t en y ear s with one y ear to be serve d in confineme nt and the balance to be serve d on intensive probation. I n Fe bruary 2004, a probation warra nt was issued alleg ing that the defe ndant violated his probation by failing to meet wi th h is p ro ba tio n s up e rv isor , fa ili ng to atte ndme e tin g s f or se x off e nd e r t re a tme nt, a ndfa ili ng to report a cha ng e in employ ment. I n Marc h 2004, the trial court sustained the war rant but plac ed the defe ndant bac k on intensive probation for nine y ear s. I n April 2004, two probation wa rra nts were-2-

issued, alleg ing tha t the defe ndant’s probation was violated be cause he wa s arr ested for stalking a nd had committed technic al violations of his probation.
At the proba tion revocation h earing , Detec tive Ger ald McShepa rd testified that he investigated t he incident of st alking leading up to the arrest of the def endant. De tective Mc Shepard indicated that the sta lking victim g ave him obsce ne letters she had rec eived and that he turne d them into the property

room to be fing erprinted. Detec tive McShepar d stated t hat the def endant’ s ha nd writi ng sa mpl e wa s o bta ine d a ndsu bmi tte d f or c omp arativ e a na ly sis

. Whe n a sk e d by the Sta te if Dete ctive McShepa

rd knew of the re sults of the handwriting analy sis, the defense c ounsel objecte d on g rounds of he arsa y

and lac k of authe ntication. A discussion ensued
, wh er eupon it was determined from the r eport that the de fenda nt’s writing sample had not be en authe nt i ca t ed or confirme d. The de fense counsel a lso arg ued that the report w as not a certified copy , and ther e wa s no evidenc e that De tective Mc Shepard or the individual conducting the handwriti n g an al y s is was an expert in handwriting compa rison. Consequently , the trial court sustained the def ense c ounsel’s objection to hear say

and lac k of authe ntication.

On c ro ss- e xami na tio n, De te c tiv e Mc She pa rdstate d that th e de fe nd a nt w a s id e nti fi e d a s a
su sp ect becaus e he wa s a re g ist e re d s e x off

e nd e r l ivi ng in c los e pr oximi ty to the a lle g e d v ic tim

. Detec tive McShepar d acknow ledg ed that other than the letters r ece ived from the vic tim, he had no p er s o n al k n o wl ed ge o f a n y ev i d en ce o f s t al k i n g.

J ames Holder, t he defenda nt’s probation off icer , testified that the def

endant f ailed to provide a valid perm an en t ad d ress as part of the c onditions of his probation. Mr. Holder stated that the defe ndant, af

ter be ing r einstated to probation on March 19, 2004, told hi m that he wa s living in a c ar. Acc ording to Mr. Holder, the defe ndant finally provided a n addre ss, 2131A Alpine Drive, but when Mr . H old e r t

ra ve le d to the a dd re ss, he dis c ov e re d a ho us e that lo ok e d a

ba nd on e d. Mr . H old e r a lso stated that the de fenda nt did not get ba ck into trea t m en t u pon being reinstated. A ccor ding to Mr. Holder, the defe ndant told him that he could not ge t ba ck into tre atment beca use he was looking f

or
a job, w as injured and could not wor k, and could not af

ford to g o to treatment. Mr. H older indica ted that th e de fe nd a nt’ s o ri g ina l pr ob a tio n v iol a tio n d e ri ve d f ro m th e sa me iss ue s.

On cr oss-examination, Mr. Holder st ated that he went to verify the defendant’s address a nd the house a

ppear ed abandone d. Howeve r, when presse d for the specific date, Mr. Holder te stified that he c ou ld n ot r e me mbe r b ut i nd ic a te d tha t he ch e c ke d the a dd re ss som e tim e be tw e e n A pr il 1 4th and 27th. When asked by the court, Mr. Holder stated t hat t he defenda nt later g ave him a dif fer ent addre ss, 2307A Alpine Drive, which was actua lly a home. Howeve r, Mr. Holde r indicate d that he didno t ve ri fy

thi s a dd re ss.

On cr oss-examination, Mr. Holder admitted that at the time the def endant’ s probation was reinstated, the defe ndant di d not have a j ob or a place to live. Mr. Holder conce ded that he ha d filed

a p ro b ati on violation warra nt less than one month afte r the de fenda nt’s probation wa s reinstated, which had g iv e n th e d e f

e n d a n t le s s th a n th irty d a y s to g e t a jo b
, f in d a p la c e to li v e , a n d p ayfor tr e a tme nt.-3-

The de fenda nt testified that he beg an sea rching for employ ment as soon as his pr obation was reinstated a nd obtained employ ment two wee ks befor e he was a rre sted for violating his probation. He state d that he had not y et re ceive d a pay ch eck f or working those two wee ks. The def endant indicated that his t re at m en t classes c ost about $120.00 a month. Acc ording to the defe ndant, he strug g led with pay ing his probation sup er v i s i o n fee s and paying f or his require d trea tment. The de fe nd a nt s ta te d tha t he we nt to his tr e a tme nt cl a sse s unti l he wa s toldby his ins truc tor

that he c ou ld not attend additional classes without pay ing for them. The defe ndant furthe r stated that he wanted t o a t t e n d t h e c l a s s e s a n d b e l i e v e d t h e mt o b e a “ g r e a tb e n e f

i t ” t o h i m

. T h e d e f

e n d a n te x p l a i n e d
, “ It was just the problem with the fina nces . . . I was g oing, but I

couldn’t kee p pay ing f

or those cla sses.”

The de fendan t t es tified that he be lieved that ther e wa s a miscommunication reg arding the Alpine addr ess he gav e M r. Holder. Although the defe ndant could not re member the numbering of the Alpine a ddress, the defe ndant s tated that he be lieved that Mr. Holde r must have written down the wr on g a dd re ss on Al pin e . T he de fe nd a nt a lso state d th a t he wa s li vin g on Al pin e str e e t a ndthi s addre ss was g iven to all his employ ment prospec ts.
When questioned by

the court, the defe ndant ac knowledg ed he ha d violated his probation a

se c on d tim e on the sa me iss ue s. Ho we ve r, the de fe nd a nt i ns ist e d th a t th e pr ob le ms a ro se be c a us e of miscommunication with his probation office r and la ck of f inance s.
Reg arding the stalking char g e, the defe ndant testified that he was not the person stalking the victim. Accor ding to the de fenda nt, his fiancée lived in the apartment by the victim. He stated:

I have no interac tions with t his lady . I ’ve se en her beca use she lived downsta irs, but sh e a lso se e n me wi th my [fi a nc é e ]. I did no t write a nd I ’l l pu t thi s on the B ibl e in fr on t of Go d, I didno t w ri te that le tter, and I ha d n o k no wl e dg e of it, a ndsh e a lso stat e d t h a t s h e d i d n o t s e e o r h a d k n o w l e d g e o n w h o w r o t e t h e l e t t e r

. . . fr om m y understanding of the paperwor k, that she also pre ssed cha rg es on someone w ho lived upstairs ac ross the hall . .

. t he police of fice r, whe n they

did the report, they

had a photo lineup of me, and she said that was not me who w as in the . . . situation.

F oll ow ing c los ing re mark s by the Sta te a nd the de fe ns e c ou ns e l, the tr ia l c ou rt state d th a t it hear d the proof in the c ase a nd was not g oing to consider the stalking situation. Howe ver, the trial

c ou rt c on sid e re d th e oth e r p ro ba tio n v iol a tio ns , s ta tin g that:

Mr. Holder

testified about the fac t tha t he had been pla ced ba ck on probation. He ha d no place to live. He was talking a bout living in a ca

r or whatever , g oes to an addre ss which Mr. Starne s g ives him and i t is an aba ndoned house. H e didn’t g et ba c k in to t

re a tme nt. I f this we re the fi rs t time thr ou g h the pip e lin e , we wo ulddo it ag ain. We w ould pr obably just re start him, but this is the second time. I j u s t fi nd that the State has car

ried its burde n of proof, which is by preponde ranc e of evide nce. I t is the se c on d v iol a tio n. Mr . St arn e s, I ’m g oin g to pla c e y ou r s e nte nc e s in to e ff e c t.-4- II. Ana lys is

On app e a l, the de fe nd a nt a rg ue s th a t th e tria l c ou rt

abu se d it s d isc re tio n in re vo kin g his pr ob a tio n. Spe c if

ic a lly , h e arg ues th at the e vid e nc e sh ow s th a t hi s p ro ba tio n o ff ic e r s ou g ht a violation warra nt ag ainst him less than t hirty day s afte r he was release d from custody and re instated to probation. Acc ording to the defe ndant, t hirty day s is not a reasonable amount of time to expect

someone just re lease d from inca rce ration to obtain employ ment, rec eive money for labor , and pay for housing , trea tment and proba tion superv i s i on. The de fenda nt also arg ues that he te stified that he did attend thre e tre atment classe s and wa s living whe re he told his probation office r he would be l i v i n g

. T h e d e f

e n d a n ta s s e r t s t h a t h e m a d e p r o g r e s s d e s p i t e t h e d a u n t i n g c o n d i t i o n s

. A c c o r d i n g l y, the def endant c ontends that the t rial court was without sufficie nt evidenc e to make a “consc ientious and intellige nt judgment” in revoking his probation.

I nitially
, we note that the decision to revoke probation l ies in the s ound discretion of the trial court. State v. L eac h, 914 S.W .2d 104, 106 (Tenn. Crim. App. 1995). The trial c ourt may revoke probatio n u p o n f

in d in g b y a p r e p o n d e r a n c e o f th e e v id e n c e th a t th e d e f e n d a n t h a s v io late d the

c on dit ion s o f h is o r he r pr ob a tio n. Se e Te nn

. Cod e An n. §§ 40 -3 5- 31 0, -3 11 (e ); Sta te v. Ha rkins
, 81 1 S. W.2 d 7 9, 82 (T e nn . 199 1) . The jud g me nt o f the tr ia l c ou rt to r e vo ke pr ob a tio n w ill be up he ld on appea l unless there ha s been a n ab u s e of discre tion. I d. I f the trial judg e has e x erc ised

“ c on sc ie nti ou s ju dg me nt i n ma kin g the de c isi on rathe r tha n ac tin g arb itr ari ly ,” the n th e re is n o a bu se of discre tion. L eac h, 914 S.W .2d at 107. Discre tion is abused only if the re cord c ontains no

su bs ta nti a l e vid e nc e to s up po rt the tr ia l c ou rt ’s c on c lus ion that a vio la tio n h a s o c c ur

re d. Ha rkins
, 811 S.W .2d at 82; State v. Gre g ory , 946 S.W .2d 829, 832 (Tenn. Crim. App. 1997)

. As previously

stated, we do not de cide the matter as if we wer e the trial court. I nstead, we revie w the re cord to de termine whether the trial court abused its discretion by revoking probation. Upon re view, the r ecor d ref lects that the defenda nt, upon violating his probation for the first time, was g iven a se cond cha nce at probation. At the sentencing hearing, the defe ndant’s probation officer testified that the def

endant ha d violat ed two conditions of his probation – he fa iled to attend trea tment classes a nd did n o t p ro v i d e a c orre ct addr ess. The de fenda nt acknowle dg ed that he stopped attending the classe s. The de fenda nt’s probation off icer also testified that he did not re ceive

a va lidpe rm a ne nt a dd re ss f ro m th e de fe nd a nt. Al tho ug h th e de fe nd a nt d isp ute d th is c on te nti on , it is important to note that the defendant did not provide the trial court with any letters, employ ment applications, or other

evidenc e in a n eff

ort to ve rify

his address a nd support his testimonythat the alleg ed probation violation was a miscommunication. After he aring th e t es t i m o ny , the trial court found by a p re pondera nce of

evidenc e that the de fenda nt’s probation wa s violated when he failed to attend trea tment c lasses and did not provide a c orre ct addr ess to his probation office r. I n making this finding, the tria l court appa rently acc redited the testimonyof the de fenda nt’s probation off icer

. I n addition, the trial court found that the def endant ha d violated his probation for the second time. L ooking at

th e r e c o r d
, th e r e e xis ts s u b s ta n ti a l e v id e n c e to s u p p o r t th e tria l c o u r t’ s d e te r mi n a tion, revoking the def

endant’ s probation.

III . C onc lusi on-5-

The judg ment of the trial c ourt is affirmed.

___________________________________ J .C. McL I N, J UDGE