### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 19, 2002
STATE OF TENNESSEE v. SAMUEL W. DOWDY
Direct Appeal from the Criminal Court for Sumner County No. CR705-2001 (8625) Jane W. Wheatcraft, Judge

No. M2001-03064-CCA-R3-CD - Filed July 9, 2002

The Defendant

pled guilty to attempt to commit aggravated sexual battery and received a thre e-year suspe nd ed sentence. Approximately nine months later, a probation violation warrant wa s issued against the Defendant, alleging that the Defendant had violated his proba ted sente nce by fa iling to report and by fa

iling to att

end a sex ual perpetrators program. Following a hearing, the trial court revoked the Defendant’s probation and ordered him to serve his sentence. This appeal followed. Following a

review o f the re cord, we

affirm t he judgme

nt of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined.

Thomas J. Smith, Assistant Public Defender, Gallatin, Ten nessee, for the Appellant, Samuel W. Dowdy.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney Genera l; Lawrence Ray Whitley, District Attorney General; an d Sal lie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION I. Procedural History

In June, 1994, the Sumner County Grand Jury indicted the Defendant for the of fense of aggravated

sexual battery. On January 23, 1995, the Defendant pled guilty to the amended charge of attempt to commit aggravated sexual battery. Pursuant t o a plea a greeme nt, the Defendant was sentenced to three years in the Tennessee Depa rtment of Corr ection, which wa s immediat ely suspended. The Defendant was placed on supervise d probation, “with the Defendant to be assessed and attend a sexual perpetrators progra m - [ and to have] no future contact with the victim or her family.” On September 20, 1995, a violation of probation warrant was issue d against

the Defe ndant.-2-

In the warrant, the Defendant’s proba tion officer alleged that the Defendant “failed

to repor t in July and August, 1995. He last reported on 6-5-95.” Additionally, the warrant a lleged that

“Mr. Dowdy has not verified any assessment or attendance to a se xual perpetrators program.”

On October 29, 2001, the trial court conducted a hear ing on the allegati ons in

the probation violation warran

t and found that the

Defend ant had vi olated the terms and conditions of his probated sentence. The trial court revoked the Defendant’s proba tion and ordered the Defend ant to ser ve his sentence in the Tennessee Department of Correction. The D efendant now appeals this determination by the tria

l court. W

e affir m the judgme

nt of the tr

ial cour t.

II. Fact s
At the hearing on the warrant alleging that the Defe ndant had violated his probation, the trial court heard the testimony of the Defendant’s probation office r, the Defendant, and the

Defendant’s cousin. Kevin Rhodes testified that he is an employee of the State Probation Office and that he was the Defend ant’ s probati on officer. He testified that the Defenda nt was convicted on January 23, 1995, and that he began his supervision of the Defendant on March 28, 1995. Mr. Rhodes testified that the Defe ndant re porte d to the probation office a total of four times, the last being on June 5, 1995. He stated that the Defendant failed to report in July and August of 1995 and had not reported since. Mr. Rhodes also testified that the Defendant had failed to attend the sexua l p erpetrators counseling program as required by the terms of the Defe ndant’s probation. Mr. Rhodes testified that the Defendant contacted

the Lawrence County Mental Health Center and scheduled an appointment for June 22, 1995. However, according to Mr. Rhodes, the Def endant never followed up on that and “absconded.” Mr. Rhodes explained that the Defendant had signed a copy of the rules of probation on February 23, 1995, and a copy of the rules of probation signed by the Defe ndant was admitted as evidence.

Th e De fendant testified that he was living with his mother at the time he was placed on probation, but sever

al months la

ter his mother threw him out of the house. The Defendant stated that when his mother came in drunk one night, she began fighting with h e r fourth husband, and “they throwed[sic] [the Defendant] out.” The Defendant testified that for a few months thereafter, he lived in the woodsunder a b

ridge. H e explained that it was d uring t hat peri od of time t hat he fa iled to contact his probation officer. His effo rts to contact his probation officer were also hamper ed by the fact that the car that he ha d bought fo r $100 ha d “just blo wed [sic ] up” a f ew week s before

his mother threw him out of the house.

The Defend ant testif

ied th at at the time of the hearing, he was living with his girlfriend of eight yea rs, Donna Pinkerton , who was

pregnan t at the time

of the he aring and with

whom he had
a three-year-old son. The Defenda nt explainedthat

he was stopped for a speeding ticket and served withthe warrant alleging that he had violated his probation. He denied ever being in any previous trouble. He also stated that he had not “been in . . . trouble since” being convicted in this case. The Defendant

attribute d his diffi culties in large pa rt to his mother, whom he described as having been1 Th is test imony was corrobor ated by the Def endant’ s cous in, Drane Kent, who test ifi ed when ref

erri ng to t

he Defend ant’s mother, “Like Sa m told y’ all , s he ma rried th ree, fo ur, fiv e tim es w e kn ow of. She woul d f ig ht a c ir cl e s aw. I’m not saying I’ m an angel, but, man ali ve, she was a hel l cat .”
-3- in “a lot of trouble through the years.” He stated, “She’s been mar ried several times. She shot her second husband. Been in and out of court and jail. Just gets kind of crazy drinking.” 1

The De fendant

testi fied that at the time of the hearing, he was working for Morga n Construction Company in Clarksville, Tennessee. He maintained that he would be able to attend a sexual perpetrators program if it were available. The Def endant also indicated

that he was suffering from a medical prob lem, stati ng “somehow I tore the muscle s loose in my chest. Fr

om my breastbone to the center of my backbone, they’re tore loose and the bones they attach to, from what I gather.” Finally, the court

heard the testimony of

Drane K ent, who i ndicate d that he i s a distan t cousin of the Defendant. Mr. Kent

indicated that the Defendant had been attending church for a few months prior to the hearing and that the Defendant was “living like a man

ought to liv e.” He a

lso indicated that the Defendant has a reputation of being a hard worker and “will do what he says he’ s going to do.” Mr. Kent testified that he and other members o f his chur

ch would a ssist

the Defendant “in any way, shape, or form, transportation or anything else, if he needsit.” On cross-examination, Mr. Kent indicatedthat he was not aware that the Defendant’s guilty plea involved the molestation of a young girl, and he testified that the church members were not a ware of this fact either.

After hearing the evidence, the trial court deter mined t h at the Defendant had violated the terms of his probated sentence. The t rial cou rt observe d that the

Defend ant’s “s tory” “l acks in credibility.” Noting t hat the De fendant had absc onded an d did not at tend sex o ffende

r treatm ent, the trial court ordered that the Defendant

serve his sentence and ordered that the D efendant be taken immediately into custody.

III. Ana lysis

We begin our

analysis with seve

ral well -settled

principle s of law pe

rtaining t o the revocation of a probat ed sente nce. When a tria

l court deter mines by a

prepond erance of the ev idence t hat a probationer

has vio lated the cond itions of hi s or her p robation , the tria

l court ha s the auth ority to revoke probation. Tenn. Code Ann. § 40-35-311(e). Once the trial court makes such a finding , it is vested with the statutory authority to “revoke the probation and suspension of sente nce and cause the defendant to commence the execution of the judgment as or iginally entered . . . .” Id. Whe n probation is revoked, “the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revoc ation of such suspension . . . .” Id. § 40-35-310.

The decision to revoke probation is in the sound discretion of the trial judge. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke probation will be upheld on appeal unless there has been an a buse of discretion. Statev. Harkins ,-4-

811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation revocation case, the record must be void of any substantial evidence that would support the trial court’s decision that a violation of the conditions of probation occurred. Id. ; State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. D elp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows the t rial court to make a conscientious and intelligent judgment. State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

In this case, the Defendant conceded that he failed to report to his probation officer and failed to complete a sexual perpetrators program as r equired by the terms and

conditions of his probated sentence. Although the Defendant testifie d that his li ving circ umstance s deterio

rated r apidly wit hin
a few months of his being placed on probation, he was unable to provide any va lid reas o n for his failure to report and his failure to comple

te a sexu al perpe

trators p rogram. As the Stat

e points out in its brief, the trial court specifically stated that it did not find the Defendant’s story to be credible.

The evidence at

the probation revocation hearing established that the Defe ndant violated the terms and conditions of his probation. The trial court therefore had the a utho rity to revoke h

is probation. The rec ord does not indica te that the trial court abused its discretion in exercising such authority. In our view, the trial court exercised conscientious judgment in revoking the Defendant’s probatio n and ord

ering him t

o serve h is origina l sentenc e in conf

inement. Accordingly, the judgment of the trial court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE