# FILED July 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708- CC-00323 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS,JR. BRUCE E. WILLI AMS, ) JUDGE ) Appe llant. ) (Direct Appeal -

Probation ) Revocati on)

FOR THE APPELLANT : FOR THE APPELLEE : MACK GARNER JOHN KNOX WALKUP Office of the Public

Defender Attorney Generaland Reporter Fifth Judici al District 421 High Street CLINTON J. MORGAN Maryvil le, TN 37804 Assistant Attorney General 425 Fifth Avenu e North GERALD L. GULLEY, JR. Nashvill e, TN 37243 (On App eal Only) Contract Appel late Defender MIKE FLYNN P. O. Box 1708 Distri ct Attor ney General Knoxvill e, TN 37901 EDWARD P. BAIL EY, J R. Assistant Distri ct Attor ney 362 Court Street Knoxvill e, TN 37804
ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L . SMI TH, J UDGE-2- 

## ORDER
On Augu st 19, 1 996, A ppella nt, Bru ce E. W ill ia ms, was placed on probation. As part of the probat ion, an electro nic m onitorin g syste m wo uld ca ll App ell ant’s res ide nce to con fi rm th at Ap pel lan t wa s abi din g by h is c urfew. On three separa te occas ions th e sys tem wa s una bleto cont act theAppel lan t. On February 2, 1997, Appell ant was arrested for pu bl ic intoxicati on. Again, on February 18, 1997 , Appel lant was arr ested for driving under the infl uence and habitual mo tor offender.

After a review of the re cord, w e affirm the jud gme nt of the trial c our t pursuant to Cour

t of Cri minal Appeals Rule20.
Appellant

raises t

wo issues on appeal : (1) whet her there i s substanti al evidence to support t he trialcourt’s decision to rev oke probat ion; and (2) alte rnatively, wheth er the tr ial cou rt shou ld have institute d an a lternativ e sentence.

“The decision to revoke probat ion rests with thesound discret ion of thetrial court.” State v. Conner , 919 S.W .2 d 48, 49 (Tenn. Cri m. App. 1995). Upon review of such a decis ion, thedefendantbears the burden of provi ng the decisi on was an abu se of disc retion. State v. Leach , 91 4 S. W.2d 1 04, 107 (Ten n. C ri m. App. 1995). In order for an abuse of disc retion to occur there must be “no substanti al eviden ce to s uppo rt the co nclus io n of the trialjudge that a violat ion of c onditions

of the probat ion has occurr ed. the proof

of a probati on violat ion need not be establi shed beyond a reasonabl e doubt, but it is suf fici ent if it al lows-3-

the trial j udge to make a conscienti ous and intelligent judgm ent.” State v. Hark in , 811 S.W .2d 79, 82 (T enn. 1991 ).

There w as substanti al evidence to support t he revocati on of probati on. Appellant

was arrested for numerous crimes while on probati on, and these arrests are substantial evi dence upon which probat ion can be revok ed. It is not the providence of

the appell ate court i n these matters to secon d guess the decisionsof the tria l court, o nly to ins pect th e foun dation in whic h the d ecisio n is rooted.

There is also substan tial evidence to sup port the decis ion not to in stitute alternative sentencing. “Sentences i nvolvi ng confinement shoul d be based on the following conside rations: (A) Con finement is ne cessary to protectsociety by restrai ning a defendant who h as a long history of crimi nal co nduct; (B) Confinement is necessary to avoid depr

eciati ng the s erio usness of the offense
or confin eme nt is particu larly suited to provide an effective deterrence to others likely to comm it similar offenses; or (C) M easure s less rest ricti ve than confinementhave frequent ly or recently been a pplied unsu ccessfull y to the defend ant.” Tenn. Code Ann. § 40-35-103. Appe llant ha s repe atedly operated motor vehicles

while i ntoxicated. The less rest rictive measures of probati on and electro nic curfew re stricti ons were tried an d failed . Ther efore th e trial co urt’s decision to incarcerate is ful ly supported.

For the above stated r easons, the deci sion of the tria l court is affirme d in accordance wit h Court of Cri minal Appeals Rule20.-4- ____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ J. CU RWOOD WITT, JR. , JUD GE