State of Tennessee v. Roy L. McAlister

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 17, 2013 Session

STATE OF TENNESSEE V. ROY L. MCALISTER

Appeal from the Circuit Court for Robertson County

No. 2011CR310 John H. Gasaway III, Judge

No. M2013-00581-CCA-R3-CD Filed November 7, 2013

Roy L. McAlister (“the Defendant”) pleaded guilty to three counts of aggravated statutory

rape and one count of sexual exploitation of a minor. Pursuant to a plea agreement, the

Defendant was given an effective sentence of three years, suspended to supervised probation

after service of 219 days in confinement. Upon the filing of a probation violation warrant,

the Defendant was taken into custody, and a probation violation hearing was held. At the

conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him

to serve the remainder of his sentence in confinement. In his original appeal of the trial

court’s ruling, we vacated the trial court’s judgment and remanded the case for the trial court

to clarify its findings. Subsequently, the trial court issued an order clarifying its findings and

affirming its previous order revoking the Defendant’s probation. The Defendant again

appealed the trial court’s ruling. Upon our thorough review of the record and applicable law,

we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Circuit Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, and

A LAN E. G LENN, JJ., joined.

H. Garth Click (on appeal), Springfield, Tennessee; and Anne Kroeger (at hearing), Assistant

Public Defender, Springfield, Tennessee, for the appellant, Roy L. McAlister.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney

General; John W. Carney, District Attorney General; and Jason White, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

In the Defendant’s first appeal of the trial court’s revocation of probation, this Court

held that, “[b]ecause the trial court’s findings are ambiguous, we are unable to determine

whether the trial court properly revoked the Defendant’s probation.” State v. Roy L.

McAlister, No. M2012-01239-CCA-R3-CD, 2013 WL 500795, at *5 (Tenn. Crim. App. Feb.

11, 2013). To assist in the resolution of this proceeding, we repeat here the summary of the

facts set forth in this Court’s opinion in that case:

On September 16, 2011, the Defendant pleaded guilty to three counts

of aggravated statutory rape and one count of sexual exploitation of a minor.

In accordance with the terms of the plea agreement, the trial court sentenced

the Defendant as a Range I, standard offender to three years on each

aggravated statutory rape conviction and to two years on the sexual

exploitation conviction, to be served concurrently, for an effective sentence of

three years. The trial court ordered the Defendant’s sentence to be suspended

to supervised probation after service of 219 days in the Robertson County

Detention Center.

In January 2012, a probation violation warrant was filed. The trial court

conducted a hearing on March 23, 2012. At the end of the hearing, the trial

court revoked the Defendant’s probation, sentenced him “to time served[,] and

reinstated [probation] on the original terms.” Shortly thereafter, on March 30,

2012, a second probation violation warrant was filed, which is the subject of

this appeal, alleging the following violations:

Rule 1: I will obey the laws of the United States, or any State in

which I may be, as well as any municipal ordinances.

Violation: [Tennessee Code Annotated section] 40–39–211(a),

offender established a residence within 1000 feet of Madison

Academy.

Rule 5: I will inform my Probation Officer before changing my

residence or employment. I will get permission from my

Probation Officer before leaving my county of residence or the

state.

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Violation: On or about March 27, 2012, this offender moved

from Robertson County to Davidson County without

permission.

The trial court held a hearing on these alleged violations on May 4,

2012. Sebrina Seaborne, a probation officer with the Board of Probation and

Parole, testified that her job responsibilities included monitoring enhanced

offenders and sexual offenders. She supervised the Defendant while he was

released on probation in this case.

Seaborne testified that she also was involved in the Defendant’s first

probation violation hearing. She agreed that the first violation arose out of the

Defendant’s residing at an apartment on Cheyenne Boulevard in Davidson

County, where the Defendant’s wife lived. Seaborne testified that she

previously visited that apartment and determined that it was located within

1,000 feet of property owned by a school, Madison Academy. Seaborne

testified that residing at that apartment is against the sex offender rules and

conditions that apply to the Defendant. Seaborne also testified that, in the

rules and conditions that the Defendant signed, he was required to get her

permission before moving from Robertson County to another county.

Seaborne testified that the Defendant was released from jail on March

23, 2012, after his first violation of probation hearing. The Defendant met

with Seaborne on March 27, 2012, to discuss where the Defendant was living

and to initiate a GPS tracking device. On March 27th, the Defendant told

Seaborne that he was “back at his home; in the apartments on Cheyenne

Boulevard.” Seaborne told the Defendant that living there was a violation of

his probation and that he already had been violated for living there. According

to her, the Defendant responded that “the Judge didn’t tell me I couldn’t go

back there, and I don’t know why it’s any of your concern where I live.”

Seaborne responded, “[I]t is my concern; the Judge did find you guilty of

violating for living there[.]” Seaborne then asked the Defendant to sign an

agreement that he knew he could not use the Cheyenne Boulevard address as

his primary or secondary address. The Defendant did sign this agreement, and

it was entered as an exhibit at the hearing. She again reiterated to the

Defendant that he did not have permission to live at the apartment on

Cheyenne Boulevard, and she further instructed him not to return there.

At the meeting on March 27th, Seaborne also placed a GPS tracking

device on the Defendant. When the Defendant left this meeting, Seaborne

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believed that the Defendant was going to go back to the Cheyenne Boulevard

residence. She stated, “His argument was that I really couldn’t tell him he

couldn’t live there. So no matter how many times I had insisted I could tell

him where to live, my understanding when he left was he was . . . just going

to ignore my instruction.”

Seaborne testified that the following three days, March 28–30, 2012,

she checked the GPS system to determine the Defendant’s whereabouts. On

each of these days, the “tracking maps” generated by the GPS system, which

were entered as exhibits, showed that the Defendant was at the apartment

complex on Cheyenne Boulevard. According to the tracking map for March

28th, the Defendant was at the apartment complex on Cheyenne Boulevard

from 09:03:35 until 13:02:26 (9:03 a.m. until 1:02 p.m.). The tracking map for

March 29th indicated that the Defendant was at the apartment complex on

Cheyenne Boulevard from 09:03:50 until 13:02:22 (9:03 a.m. until 1:02 p.m.).

The tracking map for March 30th indicated that the Defendant was at the

apartment complex on Cheyenne Boulevard from 11:40:40 until 15:39:24

(11:40 a.m. until 3:39 p.m.). On March 30th, Seaborne filed a second

probation violation warrant.

On cross-examination, Seaborne agreed that the document the

Defendant signed prohibiting him from establishing a primary or secondary

residence at the apartment on Cheyenne Boulevard did not prohibit him from

visiting that apartment. Seaborne stated that she would define “a visit” as “less

than 24 hours.” She agreed that she was basing her position that he was

establishing a residence at the apartment on Cheyenne Boulevard on “the

duration of time [the Defendant] was there and the number of days he was

there.” Seaborne then added that “on the TBI instructions it says that he

cannot maintain a presence there. Which doesn’t give you – it doesn’t give

you a time frame, but it says that he cannot maintain a presence.” She stated

that “maintain[ing] any kind of presence within a thousand feet[] – is – illegal”

and that “it is a violation.” According to her, she also explained this fact to the

Defendant. However, the “TBI instructions” were not referenced in the

probation violation warrant.

The Defendant testified that on March 23, 2012, at approximately 1:30

a.m., when he was released from jail after his first probation violation hearing,

he went to the apartment on Cheyenne Boulevard with his wife. He added,

“[W]e knew that I couldn’t live there, but there was nothing saying that I

couldn’t go back over there.” The Defendant also stated, “I talked to the

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Madison Police Department down there, . . . and told them I would be in their

area[.]” He asked the officers when he could “go check in with [his] wife and

[his] stepdaughter and it’s like they told [him] as long as there was no school

in progress, after hours, they didn’t have a problem with [him] being over

there.” Thus, the Defendant testified, “I would stay gone up until 5:30 when

the last bus . . . for Madison ran from downtown Nashville. And I’d go over

there, and I’d stay, and then I would leave at 5:00 in the morning before school

hours opened.”

The Defendant further testified that he informed Seaborne about this

schedule. He claimed,

[S]he told me I couldn’t even go over there, that I was in

violation at that point; and I told her I know I can’t live there;

she said you can’t even be over there. And I was like nobody

told me I couldn’t go over there[.][T]hey just said I couldn’t live

there. And she said no, you were well instructed that you can’t

be there. I was like – well, we had the little disagreement there.

And I told her, I was like I’m going to go over there and see my

wife; I don’t see why I can’t do that; I understand I can’t live

there.

So she put the ankle monitor on and told me if I went

back on the property then I would be immediately in violation;

that she [sic] was already in violation for being over there to

start with. And I informed her well, if I’m in violation then I’m

going to spend as much time as I can with what I’ve got,

because I’ve done lost everything in this world over this charge.

And she said well, you do what you’re going to do, because I –

and I understand her situation, but that’s the reason why I went

back over there.

Defense counsel then asked, “[T]hat would explain March 29th and

March 30th as well; is that right?” The Defendant responded,

Yes. Because I figured I was already in violation. And

if you look on that GPS I didn’t move from that address; I didn’t

go w[a]ndering around. And she wants you to be in by 9:00 at

night. I was already listed as homeless, where could I – I mean,

you got to be in; where am I supposed to be in at?

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On cross-examination by the State, the Defendant admitted that on

March 27, 2012, Seaborne told him that he “[c]ouldn’t even step foot on the

premises.” He also agreed that he signed a paper stating he could not establish

a primary or secondary residence there. He further agreed that he went and

“stayed . . . that night the 28th, 29th, 30th and so forth until [his] warrant was

served.”1 The State then asked, “[A]nd [you] stayed there the entire time . . .

opposite of what you signed and what her instruction was, correct?” The

Defendant responded, “Yes.”

At the conclusion of the hearing, the trial court found by a

preponderance of the evidence that the Defendant had violated the terms and

conditions of his probation “by maintaining a presence at the Cheyenne

Boulevard residence in Davidson County” (emphasis added) and that “[h]is

presence there was something that he did in the face of a direct instruction not

to do so.” The trial court also stated, “Given his insistence that he’s not going

to do what he’s required to do on a release status there’s no reasonable

expectation that he will obey any future instructions.” Accordingly, the trial

court revoked the Defendant’s probation and ordered that he serve the

remainder of his three-year sentence in the Tennessee Department of

Correction.

Thereafter, the trial court issued a written order reflecting its findings.

In the written order, the trial court listed the following grounds as its basis for

revoking the Defendant’s probation:

[T]he court found beyond a preponderance of the evidence that

the [D]efendant violated the terms and conditions of his

probation due to establishing a presence at a residence within

1,000.00 [sic] feet of a school’s property after being directly told

not to by his probation officer. [emphasis added].

Id. at *1-4.

On appeal, this Court determined that the “establishing a presence” and “maintaining

a presence” language used by the trial court as the basis for revoking the Defendant’s

probation, “based on the testimony of Seaborne, appears to be from the ‘TBI instructions’

purportedly applicable to the Defendant.” Id. at *5. However, this Court held that “the ‘TBI

instructions’ are not listed as a ground for revocation in the warrant and do not appear

1

According to the warrant, it was served April 12, 2012.

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anywhere in the record. Under these circumstances, the ‘TBI instructions’ cannot be the

basis of the revocation.” Id. Therefore, this Court concluded that it was unable to resolve

on what grounds the trial court intended to revoke the Defendant’s probation and held that

“[b]ecause the trial court’s findings are ambiguous, we are unable to determine whether the

trial court properly revoked the Defendant’s probation based on the grounds alleged in the

warrant.” Id. Consequently, this Court vacated the trial court’s judgment and remanded the

case for the trial court to clarify its findings regarding the basis of the revocation.

On remand, the trial court issued a new order in which it affirmed its previous

decision revoking the Defendant’s probation and found “beyond a preponderance of the

evidence that the defendant established a primary residence within 1,000 feet of a school, to

wit: Madison Academy.” Therefore, the trial court concluded that “the defendant violated

the terms and conditions of his probation by establishing a primary residence within 1,000

feet of a school in violation of his probation and in violation of [Tennessee Code Annotated

section] 40-39-211.”

The Defendant appealed, arguing that: (1) the trial court abused its discretion in

finding a violation when the evidence presented at the hearing failed to show by a

preponderance of the evidence that the Defendant established a primary residence within

1,000 feet of a school; and (2) the trial court abused its discretion in ordering the Defendant

to serve his sentence in confinement rather than reinstating his probation.

Analysis

Probation revocations are “not a stage of a criminal prosecution,” and, thus, the

standard of proof and rights due to a defendant in a criminal prosecution do not apply.

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); see also State v. Wade, 863 S.W.2d 406, 407-

08 (Tenn. 1993) (the “full panoply of rights due a defendant in criminal prosecutions do not

apply” in revocation proceedings). Tennessee Code Annotated section 40-35-311(e)(1)

(Supp. 2011) provides the burden of proof for probation revocation proceedings:

If the trial judge finds that the defendant has violated the conditions of

probation and suspension by a preponderance of the evidence, the trial judge

shall have the right by order duly entered upon the minutes of the court to

revoke the probation and suspension of sentence and:

(A) Cause the defendant to commence the execution of the judgment

as originally entered, or otherwise, in accordance with § 40-35-310; or

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(B) Resentence the defendant for the remainder of the unexpired term

to any community-based alternative to incarceration authorized by chapter 36

of [title 40]; provided that the violation of probation and suspension is a

technical one and does not involve the commission of a new offense.

See also State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Farrar, 355 S.W.3d 582,

586 (Tenn. Crim. App. 2011). Thus, the State need only prove that the defendant violated

the terms of his probation by a preponderance of the evidence.

The decision to revoke probation rests within the sound discretion of the trial court.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). On appeal, this Court will

not disturb a trial court’s probation revocation decision absent an abuse of discretion. State

v. Shaffer, 45 S.W.3d 553, 554-55 (Tenn. 2001); Farrar, 355 S.W.3d at 585. An abuse of

discretion occurs when a trial court “applies incorrect legal standards, reaches an illogical

conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies

reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d

436, 443 (Tenn. 2010).

In the instant case, the Defendant argues that the evidence submitted at the hearing

did not show by a preponderance of the evidence that the Defendant established a primary

residence at the Cheyenne Boulevard apartment. Tennessee Code Annotated section 40-39-

211(a) (Supp. 2011) mandates that, as a condition of his probation, the Defendant shall not

“knowingly establish a primary or secondary residence or any other living accommodation

. . . within one thousand feet (1,000 [feet]) of the property line of any public school, private

or parochial school.” A primary residence is defined as “a place where the person abides,

lodges, resides or establishes any other living accommodations in this state for five (5)

consecutive days.” Tenn. Code Ann. § 40-39-202(12) (Supp. 2011).

According to Seaborne’s testimony at the hearing, when she met with the Defendant

on March 27, 2012, he told her that he had been living at the Cheyenne Boulevard apartment

since he was released from jail the morning of March 23, 2012.2 The Defendant admitted

at the hearing that he stayed at the Cheyenne Boulevard apartment during this period from

approximately 5:30 p.m. each evening until 5:00 a.m. the following morning. Following the

March 27 meeting, Seaborne testified that she used a GPS device to monitor the Defendant

from March 28-30. The GPS results, admitted at the hearing without objection, showed that

the Defendant was at the Cheyenne Boulevard apartment each of those three days. On cross-

2

The record before us does not demonstrate at what point in time the Defendant originally

established his residence at the Cheyenne Boulevard apartment.

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examination by the State, the Defendant testified that he continued to stay nights at the

apartment following his March 27 meeting with Seaborne, and stayed there every night up

until the warrant was served on April 12.

This evidence was sufficient to show by a preponderance of the evidence that the

Defendant “abid[ed], lodg[ed], resid[ed], or establish[ed] any other living accommodation”

at the Cheyenne Boulevard apartment at least five consecutive days. Tenn. Code Ann. § 40-

39-202(12). Therefore, we hold that the trial court did not abuse its discretion in finding that

the Defendant established a primary residence at the Cheyenne Boulevard apartment in

violation of the terms and conditions of his probation. The Defendant is entitled to no relief

on this basis.

The Defendant further asserts that the evidence at the sentencing hearing was not

sufficient to support a finding by a preponderance of the evidence that the Cheyenne

Boulevard apartment was within 1,000 feet of a school. The Defendant argues that “there

was no evidence provided that the property itself was the property line of a public school,

private, or parochial school,” and asserts that “[t]he probation officer in the hearing expressly

stated that the physical school was located in a different location from the property line that

was within a thousand feet of the Cheyenne apartment.” Seaborne, in fact, testified as

follows without objection at the hearing:

Q: . . . you have gone out to the residence and determined it’s within a

thousand feet of a school.

A: The property’s owned by a school. Not the physical school itself,

but yes sir.

Q: And have you determined through G-P-S and through your own

visual sight that that’s within a thousand feet of the property line of the school?

A: Yes, sir.

Q: And I believe – this is a apartment complex; is that correct?

A: Yes, sir, it is.

Q: And from the apartment complex can you see the boundary line of

the school?

A: Yes, sir, you can.

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Q: How close is it?

A: Across the street.

Q: Clearly within a thousand feet?

A: Yes, sir.

The terms of the Defendant’s probation prohibited him from establishing a residence

“within one thousand feet (1,000 [feet]) of the property line of any public school, private or

parochial school.” Tenn. Code Ann. § 40-39-211(a) (emphasis added). Seaborne’s

testimony clearly established that, while the Cheyenne Boulevard apartment was not within

1,000 feet of the physical school itself, it was within 1,000 feet of the property line of the

school. Therefore, this evidence was sufficient to show by a preponderance of the evidence

that the Cheyenne Boulevard apartment was within 1,000 feet of the property line of a school

within the meaning of the statute.3 Accordingly, we hold that the trial court did not abuse its

discretion in finding that the Cheyenne Boulevard apartment was within 1,000 feet of the

property line of a school, in violation of the terms and conditions of the Defendant’s

probation. Thus, the Defendant is entitled to no relief on this basis.

Finally, the Defendant asserts that the trial court “abused its discretion in ordering the

Defendant to serve the remainder of his sentence in confinement when Tennessee Code

Annotated § 40-35-311 allowed resentencing to an alternative to incarceration when the basis

for the revocation is a technical violation.” Tennessee Code Annotated section 40-35-

311(e)(1)(B) states that upon finding a probation violation by a preponderance of the

evidence the trial judge may resentence the defendant to a community-based alternative to

incarceration “provided, that the violation of probation and suspension is a technical one and

does not involve the commission of a new offense.” Although the Defendant is correct that

the statute permitted resentencing to a community-based alternative in the instant case,

nothing in the statute required it. Rather, “if a trial court determines that a defendant has

violated the conditions of probation, it has the authority to revoke the defendant’s probation

and cause execution of the original judgment.” State v. Hunter, 1 S.W.3d 643, 646 (Tenn.

1999). Based upon our review of the record, we hold that the trial court did not abuse its

discretion in ordering the Defendant to serve the remainder of his sentence in confinement.

Accordingly, the Defendant is entitled to no relief on this basis.

3

We reject the Defendant’s argument that the statute should be interpreted to apply only when the

residence is within 1,000 feet of the physical school itself. Clearly, such an interpretation is directly contrary

to the express terms of the statute. See Tenn. Code Ann. § 40-39-211(a).

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CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court.

_________________________________

JEFFREY S. BIVINS, JUDGE

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