### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs O ct obe r 30, 200 7
STA TE OF TEN NES SEE v. DA NN Y R AY THOR

NHILL
Appeal f rom the Circ uit Court for Blou nt County No. C-15917 Jon K err y Blackw ood, Jud ge

No. E2006-02675-CC A-R3- CD - F iled Dece m ber 10, 2007

The De fenda

nt, Danny Ray Thornhill, appea ls from the orde r of the B lount Count y Cir cu it Court
re vo kin g his pr ob a tio n. I n M ay of 20 06 , th e De fe nd ant p le d guil ty to a g g ra vate d ass a

ult , a Cla ss C felony , and wa s sentence d as a Rang e I , s t an dard of fende r to three y ear s in the Depa rtment of Correc tion

. His sentence was suspende d, and he w as plac ed on super vised probation. Appr o x i m at el y four months later, the trial court issued a violation of probation war rant. Af ter a hear ing, the trial court found that the De fenda nt had violated the c onditions of his probation and order ed that his or igina l thr ee- y ear sentenc e be serve d in c onfinement. On appeal , t h e D ef endant
argue s th a t th e tr ia l c ourt a bu se d it s d isc re tio n b y

fi nd ingthat he ha d v iol a te d th e te rm s o f h is pr ob a tio n. F oll ow ingour r e vie w, we a ff ir m th e jud g me nt o f t

he tr ia l c ourt

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

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which D AVI D G. H A Y ES and R OB E R T W. W EDEMEYER , J J ., joined.

J . L iddell Kirk, Knoxvi lle, T en n essee (on appe al); and Ma ck Ga rner , District Public Defe nder ( at pr ob a tio n r e vo c a tio n h e ari ng ), fo r t he a pp e lla nt, Da nn y Ray Th or nh ill

. Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; L e sli e E. Pr ic e , A ssi sta nt A tto rn e y

Ge ne ra l; Mike Fly nn, District Attorney Gene ral; and Ellen Be rez, Assistant District Attorney Gene ral, for

the appellee , State of Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound On the e ve nin g of

De c e mbe r 3 1, 20 05 , t he Def e nd a nt w a s a rr e ste d f or a g g ra vate d a ssa

ult

. The affidavit of complaint included in the re cord on a ppeal a lleg es that the De fenda nt had threatened to c ut a nd sta b M ic he lle B arn s, his c hil dr e n’ s a un t, wi th a “ larg e kn if

e ” in t he c ours e of

an a rgume nt. On Ma y 8, 20 06 , a

c ri min a l in fo rm a tio n w a s is su e d a g a ins t th e De fe nd ant, c ha rg inghim

wi th-2-

ag g ravated assault. He pled g uilty the same da

y and wa s sentence d to serve three y ear s in the Depa rtment of Corre ction as a Rang e I , standard offe nder. His sentenc e was suspended, a nd he wa s place d on supervised pr obation. The ter ms of his probation included that he should not viol ate a ny laws and tha t h e wa s t o immediately notify his probation office r if he w as ar rested f or any su bs e qu e nt o ff

e ns e . H e wa s a lso fo rb idd e n to dr ink a lc oh ol o r u se c on tr oll e d s ub sta nc e s.
On September 20, 2006, the trial court issued a probation violation warra nt alleg ing that he ha d viol a te d the te rm s of his pr ob a tio n b y c omm itt inga dd iti on a l c ri min a l of fe ns e s a nd by fa ili ngto repor t those arr ests to his probation office r. On Dec ember 11, 2006, a probation revocation hearing was he ld.

Th e De fe nd ant’ s p ro batio n o ff ic e r, Chr ist ie Jess e e , te sti fi e d th a t the De fe nd ant r e po rt e d to her f or their f irst appointment on Aug ust 1, 2006, but he missed all subsequent appointments. Two day s after their initial meeting , the Defenda nt was arre sted for a

nd pled g uilty

to public intox ication. A certified copy of t he Defenda nt’s conviction for public intoxication committ ed on August 3, 2006,
wa s in tr o d

u c e d i n t o e v i d e n c e

. T h e D e f e n d an t d i d n o t n o t i f

y M s

. Je s s e e o f t h i s n e w o f f e n se un til afte r she ha d petitioned the trial cour t to revoke his probation.

Af te r c on du c tin g a

ro uti ne re c or ds c he c k, Ms. Jess e e le arn e d th a t th e De fe nd ant ha d a lso been a rre sted for dome stic violence a nd criminal impersonat i o n o n Au gu s t 22, 2006. Ag ain, the De fe nd ant d id n ot r e po rt

the ne w a

rr e sts to M s. Jess e e . A t th e tim e of the he ari ng , th e do me sti c v i o l en ce an d

cr i m i n al i mp er s o n at i o nch ar ges we re s t i l l p en d i n g.
Ms. J essee further

te s ti f ied that one of

the re quirements of the Def endant’ s probation was that

“ he no t be have in a

mann e r t hat is a thr e a t to oth e rs ,” and

sh e ind ic a te d th a t th e De fe nd ant f a ile d to up ho ld t his re qu ir e me nt w he n h e wa s c ha rg e d w iththe Au g us t 22 , 2 00 6 d ome sti c a ssa ult a g a ins t hi s signific ant other.

The fif ty -one- y ear -old Def

endant testified that he was a widowe r and that he had f our minor children w ho had bee n place d in the custody of Mi chelle Ba rnes after he “lost them while drinking .” The De fenda

nt admitted he had a

n alc o h o l p ro b l em and stated that he was “ slightly mentally ill.” He state d th a t he wa s una ble to w or

k a nd re c e ive d d isa

bil ity pa y men ts fro m the Soc ia l Se c ur ity Administration.

He a dmitted that he had bee n drinking wh en he was ar rested f or public intox ication on Au g us t 3, 20 06 . O n th a t occ a sio n, he wa s at the jus tic e c e nte r f or the purp os e of

pa y ingc ourt c os ts. The De fenda

nt ag ree d that since he was place d on probation he had consumed alcohol “a couple of tim e s, ” that he ha d mi sse d a pp oin tme nts wi th h is p ro batio n o ff ic e r, and tha t he d id n ot t ime ly

a dv ise his probation officer ab o u t his arre sts for public intox ication, domestic violence , and cr iminal impersonation.

He f urther a dmitted that he had pre viously been pla ced on probation for domestic violenc e in Knox County

in 2002 and had violated his probation in that ins tance . He a lso admitted that he-3-

h adp re v i o u s arre s t s an d

co n v i ct i o n s f

o r p u b l i c i n t o x i ca t i o n , p o s s es s i o no f m ar i j u an a, ca rry i n g a wea pon with the intent to go a rmed, re ckless enda

ng erme nt, and indece nt expos ure.
At the c los e of

the he ari ng , th e tr ia l c ourt fo un d that the De fe nd ant ha d fa ile d to re po rt his
ar r e s t s t o h i s p r o b a t i o n o f

f i c e r an d t h a t h e h a d b e e n c o n v i c t e d o f p u b l i c i n t o x i c a t i o n

. C o n s e qu e n t l y, the trial court revoke d the Def endant’ s probationar

y sentenc e and r einstated his orig inal three -y ear sentenc e. The Def

endant a ppeale d.

Ana lys is On appe al, the De fenda

nt argues that sufficie nt e vidence was not pr esente d to the trial court to establish that his non co m p l iance with the terms of his probation was willful. He conte nds that the trial cour

t abused its discretion by order i n g “full re vocation” a nd that revoc ation was
un re a so na

ble ba se d o n th e tr ia l court ’s fi nd ing s. He state s th a t he ha d b e e n ta kin g po sit ive ste ps to
a dd re ss h is a lc oh ol a

bu se pr ob le m and

pla nn e d to c on tin

ue tr e a tme nt. A trial judg e is vested with the discr etionary authority to revoke probation i f a pr eponder ance of the e vidence establishes that a de fenda nt vi o lated the c onditions of his or her probation. See Tenn. Code Ann. §§ 40-35-310, -311(e ); State v. Shaffe r, 45 S.W .3d 553, 554 (Tenn. 2001). “The proof of a probation violation need not be established bey ond a re asonable doubt, but it i s sufficient if it a llows the trial judge to make a conscie ntious a nd intelligent judgme nt.” State v. Har kins, 811 S.W .2d 79, 82 (Tenn. 1991)

. When a probation revocation is challeng ed, the a ppellate c ourts h av e a limit ed scope of revie w. This Court will not overturn a trial court’s revoc ation of a de fenda nt’s probation abse nt an abuse of discretion. See Shaffe r, 45 S.W .3d at 554. For an appellate court to be war rante d in finding that a trial judg e abuse d his or her discretion by revoking probation, “the re must be no substantial evidenc e to support the conc lusion of the trial court that a violation of t he conditions of probation has occ urre d.” I d.

I n the pre sent ca se, the trial c ourt was pr esente d with ample evidenc e establishing that the Def endant ha d violated the ter ms of his probation. Specifica lly , the evidenc e show ed t h at he had been a rre sted for a

nd pled g uilty

to public intox ication af ter bei ng place d on probation. The Def endant also admitted to violating his probation by failing to immediately

repor t his subsequent
arr ests to his probation office r. Acc ording ly , the trial court did not abuse its discr etion by revoking the Def endant’ s probation.

Conclusion Ba sed on the for eg oing a

uthorities and re asoning , we a ffirm the or der of the trial cour

t revokingthe Def

endant’ s probation and r einstating his origina l sentence

.



### ____ ____ ____ ____ ____ ____ ____ __ DAVI D H. WEL L ES, J UDGE