State of Tennessee v. Richard A. Siters

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 18, 2004

STATE OF TENNESSEE v. RICHARD A. SITERS

Direct Appeal from the Criminal Court for Sullivan County

No. S43,571 Phyllis H. Miller, Judge

No. E2003-02075-CCA-R3-CD

June 21, 2004

On February 28, 2002, the defendant, Richard A. Siters, pled guilty to four counts of attempted rape,

a Class C felony; one count of sexual battery, a Class E felony; and one count of attempted sexual

battery, a Class A misdemeanor. The trial court sentenced the defendant to six years, suspended, and

placed him on intensive supervised probation. On appeal, the defendant contends that the trial court

erred in revoking his probation. We disagree and affirm the revocation.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.

RILEY , J., joined.

Stephen M. Wallace, District Public Defender; and Richard A. Tate, Assistant District Public

Defender, for the appellant, Richard A. Siters.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

The defendant’s probation was subject to a variety of conditions set out in three different

documents. In his guilty plea and waiver of rights executed on February 22, 2002, the defendant

agreed to several conditions including, inter alia, Rule 1 which required “[a]bsolutely no contact

with the victims or any other minors;” Rule 2, which required that he “[e]nroll in [and] complete sex

offender treatment program with Melissa Crim;” and Rule 7 which made the defendant responsible

for obeying “[a]ny other conditions imposed by his probation officer.” The probation order, signed

by the defendant on February 28, 2002, included several special conditions under Rule 14:

I will observe any special conditions imposed by the Court. . . . (3)

Absolutely NO CONTACT with the victim or any other minors . . .

. (11) Any other conditions imposed by his probation officer.

Furthermore, Rule 6 of the probation order required the defendant to follow all instructions given

by his probation officer. Following this rule, the defendant agreed to and signed the Sex Offender

Directives which included:

1. You shall not purchase or possess any pornographic or sexually

explicit materials including but not limited to adult over the counter

publications, underground publications, privately developed

materials, adult cable stations, and sexually explicit computer

software.

....

15A. You shall have no contact with your victim(s), including

correspondence, telephone contact, or communication through third

parties except under circumstances approved in advance and in

writing by your Officer in consultation with his/her supervisor. Sex

offenders shall not enter onto the premises, travel past, or loiter near

the victim’s residence, place of employment, or other places

frequented by the victim.

On April 14, 2003, the defendant’s probation officer, Wendy Minton, filed an arrest warrant

affidavit alleging that the defendant had violated Sex Offender Directive Rule 1 by possessing and

viewing pornographic movies; Special Condition 3 and Sex Offender Directive Rule 15A by having

contact with one of his victims; and Special Condition 11 by failing to provide written proof of

attendance at sex offender treatment sessions. As a violation of Special Condition 3 and Sex

Offender Directive Rule 15A, the affidavit alleged:

The victim, . . . ran away from state custody in Kingsport,

Tennessee and came to visit her mother. The victim stayed overnight

in her mother[] and the defendant’s home and was returned to the

facility the following morning by her mother.

In a phone call with [the victim] on Tuesday[,] April 8, 2003,

she stated that when she arrived at her mother[] and defendant’s

home, the defendant was home for a short period of time before

leaving for work. [The victim] stated that she was never alone with

the defendant while she was in the home.

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As violation of Sex Offender Directive Rule 1, the affidavit alleged:

Count 1: The defendant admitted to Ricky Rogers, Polygraph

Examiner[,] that “he viewed two X-rated movies in November, and

then threw them away after being told to do so by Dr. Lancaster, his

sex offender treatment provider.”

Count 2: The defendant admitted to Ricky Rogers, Polygraph

Examiner, watching movies containing frontal nudity on satellite

dish.

As violation of Special Condition 11, the affidavit alleged:

The defendant was instructed by Community Corrections

Officer Barbara Dattulo to provide monthly proof of attendance to sex

offender treatment and failed to do so the months of December 2002

and February 2003.

The court conducted hearings in this matter on May 22 and July 17, 2003. At the first

hearing, Wendy Minton testified that she was employed by the Tennessee Board of Probation and

Parole. She said she prepared the defendant’s presentence report and met with him on February 28,

2002. They discussed both the probation order and the sex offender directives, and he signed both.

The defendant did not tell her that he did not understand either. His case later was transferred to

Bedford County, where he was placed in the community corrections program.

Barbara Dattulo testified that she was employed with South Central Human Resource

Agency, working in community corrections, and was assigned to supervise the defendant. She first

met with him on March 11, 2002, and went over the behavioral contract with him which he had

signed on March 1, 2002, in the presence of the program manager. Dattulo said she had filed a

violation report on August 5, 2002, based on the defendant’s failure to provide written proof of his

attendance at sex offender treatment classes on two separate occasions. The defendant told her on

January 24, 2003, that his class had been cancelled due to the weather, but Dattulo was unable to

verify that. Her report also alleged that the defendant had failed to pay his fines and court costs and

had failed to obtain employment. She said the defendant subsequently became employed and began

paying his fines and costs but had only paid a minimal amount.

At the second hearing, Ricky Rogers testified that he was a private polygraph examiner and

that he administered polygraphs for the State of Tennessee sex offender programs. On February 27,

2003, the defendant submitted to a polygraph examination as part of his sex offender treatment.

During the pretest interview, the defendant said “in November that he had viewed some x-rated

movies.” The defendant said he destroyed them after his sex offender treatment provider told him

to avoid sexually explicit materials and to discard any such materials that he might own. In addition,

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the defendant admitted that he had viewed movies, over his satellite dish, that featured some “frontal

nudity.”

Rogers said that relevant questions on the polygraph examination were whether, since the

previous March, the defendant had “touched the sexual parts of anyone younger than 18,” had “asked

anyone younger than 18 to touch [his] sexual parts,” or had viewed any pornography in addition to

that he already had disclosed. The defendant’s answers to these questions were “deceptive,”

according to Rogers. Asked by Rogers about these responses, the defendant “said that he still has,

he masturbates to the sexual fantasies of the 13-year-old victim.” The defendant also said that the

victim, on an unspecified night in September of 2002, ran away from state custody and arrived

unexpectedly at the home of her mother, who was the defendant’s wife, and had spent the night. As

for his then being with the victim, the defendant told Rogers that “he was there but . . . he didn’t have

any contact with her.” Rogers could not recall whether the defendant said he stayed in the house

when the victim arrived, saying, “I know the child stayed there all night. Now I don’t . . . know

exactly if [the defendant] stayed or if he went to work.”

After the polygraph exam, the defendant disclosed the victim’s visit to his sex offender

treatment provider, Dr. John Lancaster. The probation officer stated in her sworn affidavit that the

victim said, in an April 8, 2003, phone call, that the defendant “was home for a short period of time

before leaving for work.”

Dr. John Lancaster testified that he had a Ph.D. in psychology, among other degrees, was a

college professor, and worked with sex offenders. The defendant was referred to his company,

Sexual Trauma Programs, for treatment. He first met with the defendant on October 31, 2002, and

they met weekly thereafter. One of the rules of the program was that the defendant not possess any

pornographic or sexually explicit materials, and this rule was discussed with the defendant weekly.

Dr. Lancaster told the defendant not to have any contact with the victims, “[n]ot even limited, don’t

call them, don’t write them, nothing.” Before receiving the defendant’s polygraph results, Dr.

Lancaster did not know that the defendant had watched x-rated movies or movies with frontal nudity.

Likewise, the defendant had not disclosed that he had seen the victim in September. It was after Dr.

Lancaster received the polygraph results that the defendant told him of the visit by the victim, saying

“she came unexpectedly and that once he knew she was there he packed up and left . . . in less than

a hour.” As to the likelihood of the defendant “acting out” his sexual fantasies, Dr. Lancaster said

the defendant’s masturbating while fantasizing of the victim was “not a good sign by any stretch of

the imagination,” meaning “a higher probability” of acting out.

By written order entered on July 23, 2003, the trial court revoked the defendant’s probation:

It appearing to the court that the defendant was sentenced to

6 years, but that sentence was suspended and defendant placed on

probation supervision on 02-28-2002, and it further appearing that the

defendant has violated the terms and [c]onditions of said supervision

by Violation of Special Condition # 3 “Absolutely no contact with the

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victim . . .” Sex Offender Directive Rule #15A, “you shall have no

contact with your victim . . . The victim . . . ran away from state

custody in Kingsport, Tennessee and came to visit her mother. The

victim stayed overnight in their home and was returned to the facility

the following morning by her mother.

Sex Offender Directive Rule #1 “You shall not purchase or

possess any pornographic or sexually explicit materials including but

not limited to adult over the counter publications, underground

publications, privately developed materials, adult cable stations and

sexually explicit computer software. The defendant admitted to Dr.

Lancaster, his sex offender treatment provider, that he viewed two X-

rate[d] movies in November, and then threw them away after being

told to do so by Dr. Lancaster.

It is therefore ordered that the supervision aforesaid is, and the

same [is] hereby revoked, and the defendant is ordered to serve the

sentence of 6 years [s]entence in the Tennessee Department of

Correction.

ANALYSIS

The defendant argues that the trial court abused its discretion in revoking his probation,

saying that “the ends of justice and the interest of the public and the [defendant] are not best served

by having the [defendant] to serve his sentence.”

A trial court is granted broad authority to revoke a suspended sentence and to reinstate the

original sentence if it finds by the preponderance of the evidence that the defendant has violated the

terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311

(2003). The revocation of probation lies within the sound discretion of the trial court. State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim.

App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse

of discretion in a probation revocation case, “a defendant must demonstrate ‘that the record contains

no substantial evidence to support the conclusion of the trial judge that a violation of the conditions

of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The proof of a probation violation

need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial court to

make a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton,

673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)). We review this issue, therefore, for an abuse of

discretion.

The defendant admitted, during his polygraph examination, that he possessed two x-rated

movies. He argues that he disposed of the movies after his first meeting with Dr. Lancaster on

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October 31, 2002, when he was instructed to do so. However, Sex Offender Directive Rule 1, which

the defendant had signed on February 28, 2002, provided that he was not to “purchase or possess any

pornographic or sexually explicit materials.” Although the defendant asserts that he disposed of the

movies after being told by Dr. Lancaster to do so, the fact remains that he was not supposed to have

them in the first place. Consequently, we cannot conclude that the court abused its discretion in

finding that he violated Sex Offender Directive Rule 1.

As to the victim’s coming to his house and spending the night, although the defendant claims

that he did not remain on the premises, Special Condition 3 provided that he have “[a]bsolutely NO

CONTACT” with the victim, and Sex Offender Directive Rule 15A provided that he “have no

contact” with his victim. The defendant contends that he did not violate the terms of his probation

because, although he was in the house for a brief period with the victim, they had no contact.

However, the stricture against contact with the victim clearly includes more than simple physical

contact. Indeed, Sex Offender Directive Rule 15A, which the defendant was charged with violating,

reads, “You shall have no contact with your victim(s) . . . . Sex offenders shall not enter onto the

premises, travel past, or loiter near the victim’s residence, place of employment, or other places

frequented by the victim.” The broad prohibition against “contact” with the victim was clearly

intended to prohibit the defendant’s admitting the victim into his home and remaining there even for

what he claims was only a brief time. We cannot conclude that the court abused its discretion in

determining that the defendant violated these rules as well.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the trial court’s revocation of

the defendant’s probation and reinstatement of his original sentence.

___________________________________

ALAN E. GLENN, JUDGE

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