# FILED September 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE AUGUST 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9708-CC-00369 Appellee, ) ) Maury County v. ) ) Honorable Jim T . Hamilton, Jud ge SCOTT ALLAN BYTWERK, ) ) (Probation Revocation) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Repor ter 128 North Second Street 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0493 OF COUNSEL: Janis L. Turner Assistant Attorney Gener al Shara A. Flacy 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 128 North Second Street Pulaski, TN 38478 T. Michael B ottoms District Attorney General P. O. Box 459 Lawrenceburg, TN 38464-0459 Lawrence R. Nickell, Jr. Assistant District A

ttorney General P. O. Box 459 Lawrenceburg, TN 38464-0459

OPINION FILED: ____________________________

________ AFFIRMED L. T. LAFFERTY, SPECIAL JUDGE 

### OPINION2 The defendant, Scott Allan Bytw erk, appeals as of right from a ruling of the

Maury County Circu it Cour

t revoking his post

-plea diversion plac

ement. The defendant complains the trial court erred in revokinghis post-plea diversion based upon the ev idence heard at the revocation hearing. After an appropriate revi ew of the record, the briefs submitted by the parties, and the law governing the iss ue presented for review , it is theopinion of this Court that the judgment of the tr ial court is affirmed. HISTORY On March 5, 1997, the defendant was convicted in the General Sessions Court of MauryCounty for simple assault and allowing dogs to run at large. On Mar ch 7, 1997, the defendant appealed the convictions to the Maury County Circuit Court demanding a jury trial. T hen be gan the turbulent relations hip between the defendant, his nex t-door neighbors, and th e Maury County Circuit Court. On April 3, 1997, the State believed it necessary to file a motion requesting that certa in conditions be placed on the defendant’s appearance bond, such as that the defendant’s farm animals be confined to his property and not trespass onto the property of his neighbors. As was expected, the defendant, in the eyes of the State, violate d the conditions

of bail release and the trial cour t revoked the defendant’s appearance bond and ordered that all of the defendant’s animals be destroyed. Later, the trial court permitted the animals to be sold in lieu of destruction. As part of the revocation order, the defenda nt was ordered to undergo a psychiatric examination. On May 15, 1997, the defendant, through his attorney and the State, applied for post-pleadiversion. The trial court so ordered judicial divers ion for a period of eleven months and twenty-nine day s with the condition the defendant would remain in jail pending t he completion of the mental examinati on and the trial court’s r eview of the res ults . Further, the defendant was to hav e no contact with the neig hbors. On July 21, 1997, the State moved to revoke the defendant ’s judicial diver

sion and the trial court set a hearing3

forJuly 22, 1997. Based on the tes timony in this record and th e histor y of this case, the trial court revoked the defendant’s judicial diversion and reinsta ted the defendant’s original sentence. REVOCATION HEARING The State called Mr. Cregg Harris, the defendant’s next-door neighbor, in support of the motion to revoke div ersion. Mr. Harris relat

ed three (3) incidents wher e he believed t he defend ant violated the trial court’s order. The first i ncident occurred when the defendant wrote on his window or put up a s ign that read “Liar, Liar.” The H arrises ignored the words. The second incident was when M r. Harris was driving his vehicle along his property line and o bserved t he defendant feeding some animals. The defendant star ted walkingtowards Mr. Harr is’s vehicle, beating his fist in his hand. Mr. Harris pulled off and the defendant quit approaching the fence. The third incident was when Mr. Harris’s stepson and friend were playing in the yard with a dog. The defendant calledthe dog to his property an d th e dog has not been seen since. Also, Mr. Harris ob served the defendant with new animals i n contradiction to the trial court’s order. Mr. Harris admitted none of the animals had ever entered his property, nor had the de fendant come on Mr. Harris’s property . Mrs. Carol Harris rel ated to the trial court that on July 21, 1 997 she received a phone call from a man who said something to the effect, “Jesus saves those that conf ess theirsins.” Mrs. Harris panicked and hung up the phone. Later that afternoon, Mrs. Harris observed s omethi ng written in the defendant’ s window facing thei r home, a sign saying “Jesus saves, Romans 10:9" and “Ask him.” Mrs. Harris admitted she could not id entify the voice of the caller. Al so, Mrs. Harris tes tified she was anxious about the defendant based on past incidents.
The defendant testified in his own behalf as

well as M r. William B risco an d the defendant’s father, Mr. Jerry By twerk. Mr. Bris

co, employed at Columbia State C ommunity4

College, advise d the trial court he would permit the defendant to stay at his home f or a short p eriod of time and would assi st the defendant. Mr. Brisco admi tted he advised th e defendant to put up the “Jesus Saves” sign and the one tha t said “Liar, Liar.” Mr. Brisco stated, “my feeling was that that was a posit ive sign out of the Bible rather than a criticism of ‘Liar, Liar’ . . . it was a mistake for me to adv ise him that, but I did.”
Mr. Jerry Bytwerk, the defendant’s father, advised the trial court he planned to sell the property. Also, his

son had agreed not to return to the property. Mr. Bytwerk admitted he and his wife had had problems with their son in the past, ev en to the extent of obtaining a no contact court ord er against the defendant. The witness agreed there remained approximately 50 poultr y, turkeys, geese , pheasants, and ducks on the proper ty. The defendant advised the trial court he did not w

ish to live onthe property because the Harrises

harassed him and gave him no peace whatsoever. The defendant testified, “I have never wanted to have anything

to do with the Harris’. I just w anted them to be my fri ends a t first and then they did n’t want me living there and so th ey’ve tr ied to move m e out and they’ve succeeded.” The defendant a gree d to never go on the road w here the Harrises live. As to the sig ns, the defendant stat ed, “those s igns that a re in my windows are to say positive things. They’re not to be destructive or su bli minal--I don’t know w hat they said.”
Based on this evidence, the trial court found the defendant v iolated the conditions of the no contact order as wel l as the post-plea diver sion agreement.
The standard by which we revi ew a revocation of judi cial diversion is abuse of discretion. “In order for a reviewing Cour t to be warranted in finding an abuse of discretion in a probati on revocation hearing,it must be established that the record contains n o substantial evidence to suppo rt the con clusion o f the tria l judge tha t a vi olation of the5

conditionsof probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
We also note that the trial court w as entitled to revoke pr obation upon a finding by the preponderance of the evidence that the d ef endant violated several conditions of probation. T.C.A. § 40-35-311(d). Since this hearing concerned a post-plea diversio n agr eement, this Court will assumeit was granted under the requirements o f T.C.A. § 40-35-313(a). Thus, the standard in reviewing a revocation of judi cial diversion w ould be an abuse of discretion.
The trial court in its r

uling for revoking

the post-plea diversi on stated: All rig ht, Mr. Bytwerk, I’ m going to revoke y our post-plea dive rsi on for these reasons. I think y ou clearly have v

iolated the no contact order. I don’t kno w what goes throug h y our mind. I’m not a psychiatris t. I probably should be, but I’ m not. I do n’t know wha t you think . But, I me an, the a ctions you ’ve taken could be for one purpose and o ne pu rpose only, and that’s to conta c t these people--not physi cally, but in a way maybe even more devious than phy sical cont act. Yo u don’t pay any attention to anything that I say, anything that I suggest to you.
In sum, we conclude that the record on appeal clearly justifies the trial court’s finding that the defendant violated the conditi ons of his post-plea diver sion. The judgment

of the trial court is affirmed.

_____________________________________ L. T. LAFFERTY, SPECIAL JUDGE6

CONCUR:

________________________________ JOHN H. PEAY, JUDG E

________________________________ THOMAS T. WOODALL, JUDGE