IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2010

STATE OF TENNESSEE v. DANIEL LEON MCCAIG

Appeal from the Circuit Court for Dyer County

Nos. C05-474, 08-CR-171 and 08-CR-172 Lee Moore, Judge

No. W2009-02097-CCA-R3-CD - Filed July 22, 2010

The Defendant, Daniel Leon McCaig, appeals from the order of Dyer County Circuit Court

revoking his probation. In May 2007, the Defendant pleaded guilty to attempted sexual

battery and received a five-year sentence. He was placed on probation. Thereafter, on July

22, 2008, he pleaded guilty to a violation of the sex offender registry law and theft under

$500. He was sentenced to an effective sentence of two years for these new convictions, said

sentence to be suspended and served on probation. This new sentence was to be served

consecutively to the five-year sentence, resulting in an effective seven-year sentence on

probation. Subsequently, a violation warrant was issued, wherein it was alleged that the

Defendant violated the conditions of his probation. The violation report was later amended.

Following a hearing, the trial court revoked the Defendant’s probationary sentence and

ordered that his original seven-year sentence to the Department of Correction be reinstated.

On appeal, the Defendant argues that the evidence does not support full revocation of his

probation. After a review of the record, we conclude that the trial court did not abuse its

discretion by revoking the Defendant’s probation. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES,J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

James E. Lanier, District Public Defender; Timothy Boxx, Assistant Public Defender,

Dyersburg, Tennessee, for the appellant, Daniel Leon McCaig.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

In Case No. C05-474, a Dyer County grand jury indicted the Defendant for rape of a

child. On May 15, 2007, the Defendant pleaded guilty to attempted aggravated sexual

battery, a Class C felony. See Tenn. Code Ann. § 39-13-504. Pursuant to the terms of the

plea agreement, he received a five-year sentence, which was suspended, and the Defendant

was placed on probation. The Defendant also agreed to register as a sex offender.

On April 14, 2008, the Defendant was charged with violation of sexual offender

residential restrictions, a Class E felony, and theft under $500, a Class A misdemeanor, (Case

Nos. 08-CR-171 and 08-CR-172). See Tenn. Code Ann. §§ 39-14-103, 40-39-211. He

pleaded guilty to those charges on July 22, 2008, and he was sentenced to two years for the

violation of the sex offender registry and eleven months and twenty-nine days for the theft

conviction. The new sentences were to be served concurrently with one another but

consecutively to the prior five-year sentence—a seven-year sentence in total. He was again

placed on probation.

On July 19, 2007, the Defendant’s probation officer filed a violation report on the

Defendant for failure to report, failure to provide proof of employment, failure to pay

supervision fees, failure to get permission to change his address, failure to attend sex

offender counseling, and absconding. In January 2008, the trial court revoked his probation.

The Defendant was ordered to serve sixty days in jail, followed by a return to probation at

the conclusion of his incarceration.

Thereafter, another probation violation warrant was issued on October 20, 2008.

According to the warrant, the Defendant’s probation officersought to revoke the Defendant’s

probation because he failed to provide proof of work or a work search, changed his address

without his officer’s permission, failed to report, failed to pay supervision fees, failed to

attend sex offender counseling, and failed to re-register as a sex offender. A probation

violation report was issued in conjunction with the warrant, detailing the allegations against

the Defendant. An amended violation report was filed in April 2009. In the amended report,

in addition to expounding on the original allegations, it was stated that the Defendant was

arrested in Missouri, although he did not have permission from his probation officer to leave

the state.

A probation revocation hearing was held on June 29, 2009. Charles Smith, the

Defendant’s probation officer, testified that he was assigned to supervise the Defendant. Mr.

Smith confirmed that the Defendant’s probation had been previously revoked for a period

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of time. When asked how the Defendant behaved after he was released, Mr. Smith replied

that, “[i]n the beginning he was reporting, tried to comply. But shortly after, like I said, in

October the 20th of 2008 I had to file another violation.” Mr. Smith then detailed the

allegations contained in the violation warrant. As for the allegation that the Defendant

changed residences without permission, Mr. Smith explained that he conducted two home

checks; however, the Defendant was not at home during either. According to the

Defendant’s father, the Defendant resided there but was at work on both occasions.

Thereafter, on October 7, Mr. Smith phoned the residence and spoke with the Defendant’s

mother. The Defendant’s mother stated that she had not seen her son since October 3, when

he got mad at her and left the home. Additionally, the Defendant was required to register

quarterly as a sex offender, and he failed to do so. Mr. Smith then testified about the

allegations in his follow-up report filed on April 22, 2009, wherein he detailed that the

Defendant was arrested in Missouri on April 15, 2009, when he did not have permission to

leave Tennessee. In Mr. Smith’s opinion, the Defendant was “unsupervisable.”

On cross-examination, Mr. Smith confirmed that the Defendant was not permitted to

work as a roofer, his chosen profession, due to the fact that children may be present inside

the residences. Mr. Smith could not recall the Defendant ever telling him that he could not

afford sex offender counseling.

The Defendant’s mother testified. She explained that the Defendant was still living

at her home when Mr. Smith called; they had just gotten into an argument, and the Defendant

“went to his girlfriend’s.” She testified that the Defendant was working as roofer with her

and her husband at residences where there were no children.

The Defendant claimed that he had been “repeatedly” attempting to obtain work by

going to factories, but that they would not hire him due to his criminal background. He

denied that he had ever changed residences and said he still resided with his mother at the

time of the hearing. When asked about his failure to report, failure to re-register as a sex

offender, and failure to attend counseling, the Defendant stated that Mr. Smith threatened to

violate him, and he was “scared.” The Defendant also claimed that he was unable to attend

counseling because he could not afford it. According to the Defendant, he went to Missouri

to find work, so he could pay his fines. He stated that he had paid $1,400 toward his fines.

On cross-examination, the Defendant stated that counseling was $25 per week or $50

for a private session. The Defendant confirmed that he lived with his parents and that they

provided him with a place to live, food, and clothing, at no cost to him. He had no bills other

than his court costs and fines. He admitted that his probation had previously been revoked

for violating similar rules.

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At the conclusion of the hearing, the trial court revoked the Defendant’s probation,

reinstated his original seven-year sentence, and remanded him to the Department of

Correction, concluding as follows:

All right, . . . you’ve been here before on very similar violations. In

January of 2008 an order was entered; you were given a partial revocation at

that time. You acknowledged your violations and now in less than a year after

that we have the same thing happening again. You know the problem, the

problem is not that you’re not working. The problem is that you simply aren’t

gonna follow the rules. You’re gonna do what you want to do. There is

nothing in the probation—There is nothing in the probation that makes

you—would make you be violated if you didn’t get a job. All you’ve got to do

is go up there regularly and showing them that you’re trying to get a job.

Don’t tell me that you don’t know that because we’ve been through that one

time before already.

And changing your residence: You get mad at your mama or you get

mad at your daddy and so you leave and go and spend—and you stay with your

girlfriend. That’s violating your probation.

You failed to report. I don’t care whether it’s because you think you’ve

been violated or what. The truth of the matter is if you thought you were

violated then you should have reported to jail. You knew exactly what was

going on with that. You weren’t reporting in September, October of '08.

Didn’t report ever after that and didn’t—And you tell me here today that you

were working, roofing during this time for your father and making sure that

you weren’t violating your probation and yet you don’t ever have money to go

get your sex offender counseling and you don’t re-register. We don’t—We

can’t have it. We’re not gonna have it. You simply don’t care about the rules

and you don’t care about the probation.

It is from the order of revocation that the Defendant now appeals.

ANALYSIS

The Defendant contends that the evidence adduced at the hearing did not support full

revocation of his sentence. Specifically, the Defendant states as follows:

[T]he record shows that the [D]efendant did not have the ability to abide by the

terms and conditions of probation as required by his probation officer. The

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[D]efendant was prohibited from working in his profession and all of his other

problems flowed from his lack of ability to find work. He was unable to pay

for supervision fees and counseling, so he was threatened with a violation.

When he was threatened for not paying, the [D]efendant became scared and

failed to report. When he could not find work that complied with his probation

officer’s requirements, the [D]efendant had to travel out-of-state.

We note that the Defendant does not challenge the grounds supporting revocation, only that

he could not comply with the requirements.

A trial judge is vested with the discretionary authority to revoke probation if a

preponderance of the evidence establishes that a defendant violated the conditions of his or

her probation. See Tenn. Code Ann. §§ 40-35-310, -311(e); State v. Shaffer, 45 S.W.3d 553,

554 (Tenn. 2001). “The proof of a probation violation need not be established beyond a

reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and

intelligent judgment.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

When a probation revocation is challenged, the appellate courts have a limited scope

of review. This Court will not overturn a trial court’s revocation of a defendant’s probation

absent an abuse of discretion. See Shaffer, 45 S.W.3d at 554. For an appellate court to be

warranted in finding that a trial judge abused his or her discretion by revoking probation,

“there must be no substantial evidence to support the conclusion of the trial court that a

violation of the conditions of probation has occurred.” Id.

Based upon our review of the record, we conclude that there is substantial evidence

to support the conclusion of the trial court that a violation of the conditions of probation

occurred. The trial court noted that the Defendant’s probation had already been revoked once

on similar allegations. While the Defendant maintained that he could not find employment,

he offered no proof of any attempts to find work. He changed residences without permission

and did not attend counseling as ordered. Although he had no living expenses and worked

periodically, he failed to pay for his supervision fees. The proof also showed that he failed

to report and failed to re-register as a sex offender. He was arrested in Missouri, without

permission from his probation officer to leave the state. The Defendant continued to fail to

follow the rules of his probationary sentence. The trial court was statutorily authorized to

reinstate the Defendant’s original seven-year sentence. See Tenn. Code Ann. §§ 40-35-310,

-311(e), -36-106(e)(4). Accordingly, we conclude that the trial court neither erred nor abused

its discretion in revoking the Defendant’s probation. This issue is without merit.

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CONCLUSION

Based upon the foregoing, the judgment of the Dyer County Circuit Court revoking

the Defendant’s probation and ordering reinstatement of his seven-year sentence in the

Department of Correction is affirmed.

_________________________________

DAVID H. WELLES, JUDGE

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