State v. Harold Dufour

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

FILED

AT KNOXVILLE

September 29, 1999

AUGUST 1999 SESSION Cecil Crowson, Jr.

Appellate Court Clerk

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A. No. 03C01-9902-CR-00063

)

vs. ) Washington County

)

HAROLD DUFOUR, JR., ) Honorable Lynn W. Brown

)

Appellant. ) (Probation Revocation)

)

FOR THE APPELLANT: 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 State

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., JUDGE

OPINION

The defendant, Harold Dufour, Jr., appeals the revocation of his probation and

the imposition of an incarcerative sentence by the Washington County Criminal Court. On

January 31, 1997, the defendant pleaded guilty to one count of rape and one count of sexual

battery. The trial court entered convictions for these offenses, 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 Correction (TDOC). We affirm this

judgment of the trial court.

The trial court’s January 31, 1997 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 probation violation petition alleged the

breach of this requirement because of the defendant’s arrest for assaulting his wife.

Although the petition alleged other breaches that involved the failure to report, to pay the

required fees and costs, and to complete community service work, the trial 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 hearing established that the assault offense for which the defendant was

arrested, as alleged in the petition, resulted in a conviction that was based upon the

defendant’s guilty plea. The defendant committed the assault by hitting his wife with his

fists and caused the victim to suffer two black eyes and other contusions and abrasions.

After concluding 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-year

sentence.

In his brief, the defendant concedes that a violation of probation occurred but

argues that the trial court erred in not placing him again on probation or placing him in a

Community Corrections program.

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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). The trial court is required only to find that the violation of

probation occurred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311 (d)

(1997). If a violation is found and revocation occurs, the trial court has the discretionary

authority to order the defendant to serve the original sentence. State v. Duke, 902 S.W.2d

424, 427 (Tenn. Crim. App. 1995). In the present appeal, we must determine whether the

trial court abused its discretion in revoking the probation and ordering the defendant to serve

his entire sentence . State v. 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 assaulting 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.

Furthermore, we find no abuse of discretion in the trial court’s decision to

require the defendant to serve his original sentence and in denying the defendant’s request

for further probation or for placement in Community Corrections

First, we note that the defendant was not eligible for a Community

Corrections program. A person 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 offenses for which the defendant was sentenced

were rape and sexual battery, see Tenn. Code Ann. § 40-36-102 (12) (1997) (defining

nonviolent felony offense as an offense which does not involve, inter alia, “sexual contact

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or sexual penetration”), and the conduct which triggered the revocation of probation was a

violent assault. Accordingly, the defendant was not a candidate for Community Corrections.

Moreover, the trial court did not abuse its discretion in denying any other form

of alternative sentencing 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. See, e.g., State v. Daniel Wilson, No.

03C01-9702-CC-00050 (Tenn. Crim. App., Knoxville, Dec. 4, 1997); State v. Howard Luroy

Williamson, Jr., No. 02C01-9507-CC-00201, slip op. at 4 (Tenn. Crim. App., Jackson, Sept.

30, 1996) (references to sentencing principles by trial court is “not necessary in determining

the appropriate sanction following revocation of probation”); State v. Leach, 914 S.W.2d

104, 107 (Tenn. Crim. App. 1995) (where defendant has new charges 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 positive

drug test and missing appointments), perm. app. denied (Tenn. 1994); State v. Aaron

Switzer, No. 03C01-9211-CR-00380, slip op. at 3 (Tenn. Crim. App., Knoxville, July 23,

1993) (trial court did not act arbitrarily in imposing original sentence).

Accordingly, we affirm the judgment of the trial court.

______________________________

JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

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_____________________________________

DAVID H. WELLES, JUDGE

_____________________________________

JERRY L. SMITH, JUDGE

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