FILED

September 26, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00399

)

Appellee, ) SULLIVAN COUNTY

)

)

V. )

) HON. R. JERRY BECK, JUDGE

DAVID WILLIAM SMITH, )

) (AGGRAVATED BURGLARY, 

Appellant. ) THEFT OVER $1,000.00)

FOR THE APPELLANT: FOR THE APPELLEE:

LARRY WEDDINGTON JOHN KNOX WALKUP 

Attorney at Law Attorney General & Reporter

200 Seventh Street 

Bristol, TN 37620 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243-0943

H. GREELEY WELLS, JR.

District Attorney General

JOSEPH EUGENE PERRIN

Assistant District Attorney General

P.O. Box 526

Blountville, TN 37617-0526

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, David William Smith, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. On August 30, 1994,

Defendant entered pleas of guilty to three charges of aggravated burglary and

three charges of theft over $1,000. Defendant received four years on each

conviction to run concurrently, and a probation order was entered that same day.

Defendant’s probation was revoked on February 15, 1995, and he was ordered

to serve his sentence on Community Corrections. On July 14, 1995, an Order

was entered returning Defendant to probationary status subject to the Community

Corrections Supervision Order. On December 1, 1995, another arrest warrant

was issued for Defendant’s violation of probation. Following a probation hearing

in the Circuit Court of Sullivan County, Defendant’s probation was revoked and

he was ordered to serve the sentence in confinement. In his sole issue on

appeal, the Defendant argues that the trial court abused its discretion in revoking

Defendant’s probation and ordering him to serve his sentence. We affirm the

judgment of the trial court.

On November 28, 1995, at approximately 10:15 p.m., Officers Dennis

Banks and Fred Overby responded to 2207 Anderson Street in Bristol,

Tennessee to pick up a runaway juvenile. While placing her in custody they were

met by Defendant, who was the juvenile’s boyfriend. The Defendant had words

with the officers and made threats that he could handle all of them due to his

karate knowledge. He said that he could “take them out anytime he wanted to.”

The officers left with the female juvenile and drove to the location of 1301

Anderson Street where they stopped to attend to her medical needs. The
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Defendant approached to check on his girlfriend, and again threatened the

officers with bodily harm. At this point Officer Overby called for back up. 

Officers Lloyd Heaton, Steve Terry and Keith Feathers responded to the call. 

Officers Feathers and Terry escorted Defendant away from the scene.

Defendant told these officers that he had driven to the location and that his car

was parked in a nearby alley. 

A few minutes later, as the officers were standing near a patrol car on the

right side of the street, Officer Terry saw a car approach. The car turned off its

headlights, accelerated, and then swerved to the right towards the group of

officers. The car narrowly missed the officers and then sped away. Some of the

officers pursued the vehicle until it struck two utility poles and stopped. The

driver got out of the vehicle and fled on foot. The license plate on the car was

registered to the Defendant. He was ultimately apprehended near the scene of

the wreck a short time later. Defendant had to be chased on foot after he was

recognized by an officer.

Defendant was charged with five counts of Attempted First Degree Murder

in relation to the events on November 28, 1995. A Violation of Probation warrant

was issued on December 1, 1995, and Defendant was arrested the same day.

The probation violation alleged: (1) Violation of Rule One - failure to obey the law

by the arrest for the offenses of Attempted First Degree Murder (five counts); (2)

Violation of Rule Two - failure to immediately report the new arrest; (3) Violation

of Rule Seven - drinking to excess in relation to the events of November 28,

1995; and (4) Violation of Rule Eight - failure to pay fees for the months of July

1995 through November 1995. 
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At trial on the attempted murder counts, the jury acquitted the Defendant

of Attempt to Commit First Degree Murder, five counts, but reached an impasse

on all lesser included offenses which were still pending at the time of the

revocation hearing. The drinking to excess violation was dismissed and the

court made no finding concerning the failure to pay fines or failure to report new

arrest charges. The trial judge did find sufficient evidence that the Defendant

was the person driving the car that almost hit the officers, thus violating Rule

One, failure to obey the law. 

Both the granting and denial of probation rest in the sound discretion of the

trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). In

determining whether or not to revoke the probation, the trial judge need not find

beyond a reasonable doubt that a violation of the terms of probation has

occurred. The existence of a violation need only be supported by a

preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1990). 

The trial judge must, however, adduce sufficient evidence during the

probation revocation hearing to allow him to make an intelligent decision.

Mitchell, 810 S.W.2d at 735. The determination made by the trial court, if made

with conscientious judgment, is given the weight of a jury verdict. Stamps v.

State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm to appeal denied, id.

(Tenn. 1981).

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

limited scope of review. For an appellate court to be warranted in finding a trial

judge erred in determining that a violation has occurred, it must be established
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that the record contains no substantial evidence to support the conclusion of the

trial judge. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the violation is

so supported by the record, the judgment of the trial court revoking probation will

not be disturbed on appeal unless is appears that the trial court acted arbitrarily

or otherwise abused its discretion. State v. Williamson, 619 S.W.2d 145, 146

(Tenn. Crim. App.), perm to appeal denied, id. (Tenn. 1981). 

Although the evidence presented at the hearing was mostly circumstantial,

it was sufficient to allow the trial court to make a conscientious and intelligent

finding of a violation of probation by a preponderance of the evidence. The

Defendant threatened the officers by making repeated comments about “taking

them out,” evidently in response to his girlfriend being taken into custody.

Defendant approached the officers again after they stopped on the side of the

road to attend to his girlfriend’s medical needs, and once again, Defendant acted

in an extremely threatening manner towards the officers. After being escorted

away from the scene, Defendant told the officers that his car was in a nearby

alley, and a few moments later a car accelerated and then swerved towards the

officers in an attempt to strike them. The officers pursued the car until it wrecked.

It was discovered that the license plate on the car was registered to the

Defendant. A few minutes later, the Defendant was apprehended near the scene

where the car wreck occurred. 

The trial court made the following findings: “[t]he act, if the defendant

committed it, would I think constitute a violation of the defendant’s condition to

probation because such act would be unlawful, irregardless of the degree of the

offense involved. The Court is aware that we have had a jury trial on that
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offense. The jury did reach a finding of not guilty of attempt to commit first

degree murder, a multiple count involving the officers and they basically had a

hung jury on the lesser included offense. But in this hearing, this Court s[i]ts as

finder of fact.” Later in its ruling from the bench, the trial court stated that it found

beyond a reasonable doubt (while recognizing that a preponderance of the

evidence was all that was necessary) that Defendant was the driver of the vehicle

that almost struck the officers.

There was substantial evidence supporting the trial court’s conclusion that

Defendant was the driver of the car. The trial court properly found that the

Defendant had engaged in criminal activity constituting a violation of a condition

of Defendant’s probation. This issue is without merit. We affirm the judgment

of the trial court. 

____________________________________

THOMAS T. WOODALL, Judge 

CONCUR:

___________________________________

DAVID H. WELLES, Judge

___________________________________

JOHN K. BYERS, Senior Judge