# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIM INAL APPEALS OF

TENNESSEE AT KNOXVILLE AUGUST 1999 SESSION
STATE OF TENNESSEE, ) ) Appellee , ) C.C.A. No. 03C01-9902-CR-00063 ) vs . ) Washington County ) HAROLD DUFOUR, JR. , ) Honorable Lynn W. Brown ) Appellant
. ) (Probation Revo cation) ) FOR THE APPELLA

NT: FOR THE APPELLEE: JEFF KELLY (at

trial) PAUL G. SUMMERS Assistant District Public Defender Attorney General & Reporter P.O. Box 996 Johnson City, TN 37605 CLINTON J. MORGAN Counsel for the Sta

te GERALD L. GULLEY, JR. (on appeal) 425 Fifth Avenue North P.O. Box 1708 Nashville, TN 37243-0493 Knoxville, TN 37901-1708 DAVID CROCKETT District Attorney General

STEVE FINNEY Asst. District Attorney General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD WITT , JR., JUDGE2 OPINION
The defendant, Harold D ufour, Jr., appeals the revocation of his probation and the imposition of

an incarcerat

ive sentence by

the Washington Coun

ty Criminal Cou

rt. On January 31, 1997, the defendant ple aded guilty

to one count of rape and one count of sexual bat ter y. The trial court entered convictions for these offen ses, imposed an effective ten-year sentence, and probated the sentence. After a probation revocation hearing was held on September

4, 1998, the trial court revoked the probation and ordered the defendant to serve the original sentence in the Tennessee Department of Cor

rection (TDOC).

We affirm this judgment of the trial court.

The tri al c our t’s Jan uary 3 1, 19 97 order of probation set forth several conditions, including a requirement that the defendant “obey the laws of

the United States,
or any State in which [the defendant] may be.” The pr obation violation petition alleged the breach of this require ment beca use of the defendant’s arrest for assaulting his wife. Although the petition alleg ed other breac

hes that involved the failure to report, to pay the required fees and costs, and to complete community service wor k, the tri al court, in its September

4, 1998 revocation order, found only that the defendant violated “the terms and conditions of . . . probation by new [sic] conviction for assault . . . on 6-23-98.” The proof at the revocation hear

ing establis hed that the assault offense for which the defendant was arrest e d, as alleged in the petition, resulted in a conviction that was based upon the defendant’s guilty plea

. The defendant c

omm itted the assault by

hitting his wife wi

th his fists and caused the vi

ctim to suffer two b

lack eyes a

nd other contusi

ons a nd abrasions. After concludin g that this assault was a violation of the conditions of probation, the trial court ordered that the defendant be incarcerated in the TDOC to serve his original ten-y ear sentence.

In his brief, the defendant concedes that a violation of probation occurred but argu es that the trial cour

t erred in not plac

ing him again on

probation or pla

cing him in a Community Corrections program.3 The revocation of probation is committed to the sound discretion of the trial judge. State v. Harkins , 811 S.W.2d 79, 80 (Tenn. Crim. App. 1991). In order for an abuse of discretion to occur, the reviewing court must find that the record contains no substantial evidence sufficient to

support the trial court’s conclusion that the violation of the terms of probation has occurred. Harkins , 811 S.W.2d at 82; State v Delp , 614 S.W .2d 395, 398 (Tenn. Crim. App. 1980). Th e trial court is r

equ ire d on ly t o find that the violation of probation occurred by a preponderance of the e vidence. Tenn. Code Ann. § 40-35-311 (d) (1997)
. If a violation

is found and revoc

ation occurs, the

trial court has the

disc retionar y authority to order

the defendant to serve the original sentence. Statev. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995). In the present appeal, we mus t deter mine whether the trial court abused its discretion in revoking the probation and ordering the defendant to serve his entire sentence . Statev. Aaron Switzer , No. 03C01-9211-CR-00380, slip op. at 3 (Tenn. Crim. App., Knoxville, July 23, 1993).

The record supports

a finding that

the defendant violated his probation via the law-offending conduct of assau ltin g his wife, and the defendant concedes as much. The record fully supports the finding of a violation of the terms of probation, as well as the trial court’s decision to revoke the probation.

Furthermor e, we find no abuse of discretion in the trial court’s decision t o require the defendant to ser ve his original se

ntence and in

denying th

e defendant’s r

equest for further pro

bation or for plac

ement in Community

Corrections
First, we note that the de fenda nt was not eligible for a Community Corrections program. A per son who commits

a felony offense that is violent or involves a crime against the person or who “demonstrate[s] a present or past pattern of behavior indicating violence” is not eligible for a Community Corrections program. Tenn. Code Ann. § 40-36-106 (a)(2), (3), (5) (1997). The offe nses for which the defendant was sentenced
were rape and sexual battery, see Tenn. Code Ann. § 40-36-102 (12) ( 19 97) (defining nonviolent felony

offense as an offense which does not involve, inter alia , “sexual contact4

or sexual penetration”), and the conduct which triggered the revocation of pr

obation was a violent assault. Accord

ingly, the d

efendant was not

a candidate for

Community Corr

ections.

Moreover, the trial court did not abuse its discretion in deny ing any oth er form of alternative sen tenci ng to the defendant. The defendant had been given the benefit of a probated sentence, and

yet, while on probation, he assaulted his wife by hitting her several times and punching her in the eyes with his fists. S ee , e.g. , State v. Daniel Wilson , No. 03C01-9702-CC-00050 (Tenn. Crim. App., Knoxville, Dec. 4, 1 997); State v. Howard Luroy Williamson, Jr ., No. 02C01-9507-CC-002 01, slip op. at 4 (Te

nn. Crim. App., Jackson, Sept. 30, 1996) (refere

nces tosentencing principles by trial court is “not necessary in determining the appropriate sanction following rev ocation of probation”); State v. Leach , 914 S.W.2d 104, 107 (Tenn. Crim. App. 1995) (where de fendant has new c

harges pending

, trial court did not abuse its discretion in ordering the defendant to be incarcerated); State v. Johnny Ray Christman , No. 01C01-9405-CC-00178, slip op. at 5 (Tenn. Crim. App., Nashville, Mar. 30, 1995) (trial court’s refusal to place the defendant in community corrections is not an abuse of discretion even where violations are not the most severe possible); State v. Darrell Wilson , No. 02C01-9207-CR-00167, slip op. at 6-7 (Tenn. Crim. App., Jackson, Oct. 27, 1993) (trial court did not abuse its discretion in failing to consider community corrections for po si tive drug test and missing appointmen ts), perm . app . denied (Tenn. 1994); State v. Aaron Switzer , No. 03C01-9211-CR-00380, slip op. at 3 (Tenn. Cri m. App., Kn oxville, July 23, 1993) (trial court did not act arbitrarily in imposing original sentence).

Accordingly

, we affirm the ju

dgment of the tri

al court.

______________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:5

_____________________________________ DAVID H. WELLES, JUDGE

_____________________________________ JERRY L. SMITH, JUDGE