          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE           FILED
                            APRIL 1997 SESSION
                                                        July 31, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                 )    C.C.A. No. 03C01-9607-CC-00265
                                    )
             Appellee,              )    SULLIVAN COUNTY
                                    )
VS.                                 )    HON. R. JERRY BECK, JUDGE
                                    )
ERNEST GENE MANN,                   )    (Violation of Probation)
                                    )
             Appellant.             )



FOR THE APPELLANT:                       FOR THE APPELLEE:

GALE FLANARY                             JOHN KNOX WALKUP
Assistant Public Defender                Attorney General and Reporter
P.O.Box 839
Blountville, TN 37617                    CLINTON J. MORGAN
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         H. GREELEY WELLS, JR.
                                         District Attorney General

                                         GREG NEWMAN and
                                         GENE PERRIN
                                         Assistant District Attorney Generals
                                         P.O. Box 526
                                         Blountville, TN 37617




OPINION FILED:


AFFIRMED



CHRIS CRAFT,
SPECIAL JUDGE




                                OPINION
       The defendant, Ernest Gene Mann, appeals as of right from an order revoking

his probation on three sexual battery convictions.         The warrant for violation of

probation alleged three violations: 1) that the defendant committed a domestic violence

assault, 2) that he used an intoxicant to excess, and 3) that he failed to complete his

sex offender treatment program. The state and defense tendered a guilty plea to the

trial judge, the defendant admitting guilt to the last two charges, but pleading “no

contest” to the domestic violence assault, with an agreed sentence of 30 days in jail

and then 6 months in a community corrections program, a part of which would entail

completion of the sex offender treatment program. The trial judge rejected the

settlement, feeling that     the defendant was statutorily ineligible for community

corrections, sexual battery being a crime of violence to the person. A hearing was then

had on a not guilty plea, at which the state called three witnesses.            T    h   e

defendant’s wife, Lucretia Mann, was called by the state concerning the domestic

violence assault, but recanted her statement to the police. She testified that she lied

to the police about that incident and that she had really started the fight and that it was

her fault. She also testified on cross-examination that the defendant missed his sex

offender treatment session because they couldn’t afford it..

       The police officer who arrested the defendant for the domestic violence

complaint then testified that he saw the wife’s injuries and that the defendant had a

strong odor of alcohol on his breath when arrested.

       The final witness was the therapist who was giving the defendant his sex

offender treatments, or “psycho-sexual evaluation.” She testified that the defendant’s

wife first missed her appointment, which would have cost $90, and the defendant then

missed his next appointment, which would have cost $120. She also stated that there

was no evidence that the defendant or his wife ever called to cancel the appointments,

or give a reason why they were missed.

       The defendant offered no proof, other than the cross-examination of his wife,

to show why he had not attended the counseling sessions. The trial judge found that

the defendant’s wife was a “thoroughly impeached” witness, and obviously gave her



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financial excuse little credence. He dismissed the domestic violence and intoxication

grounds, but found that the defendant violated his probation in missing his

appointment with the therapist.

       In probation revocation hearings, the credibility of the witnesses is for the

determination of the trial judge. Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965);

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). On review, the findings

of the trial judge have the weight of a jury verdict. Carver v. State, 570 S.W.2d 872,

875 (Tenn. Crim. App. 1978). When a trial judge finds that a defendant has violated

the conditions of his or her probation, the judge has the authority to revoke probation.

T.C.A. § 40-35-310. In making this determination, 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.

T.C.A. § 40-35-311(d). The revocation of a suspended sentence rests in the sound

discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.

1991). For this Court to find an abuse of discretion by the trial court 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." Delp, 614 S.W.2d at 398. In this case, the trial

court exercised conscientious judgment in revoking appellant's probation. We therefore

uphold the lower court's decision. While the actions that resulted in the revocation of

his probation may seem trivial to appellant, he entered into the probation agreement

knowing full well its terms and conditions. State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim.

App. 1994). We find the existence of a violation to be supported by a preponderance

of the evidence.

       The judgment of the trial court is AFFIRMED.




                                           CHRIS CRAFT, SPECIAL JUDGE




                                           3
CONCUR:


JERRY L. SMITH, JUDGE




JOE RILEY, JUDGE




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