        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 8, 2011

            STATE OF TENNESSEE v. TALMADGE S. CROWDER

              Direct Appeal from the Criminal Court for Wilson County
                    No. 08-CR-871     David Earl Durham, Judge


                  No. M2010-01341-CCA-R3-CD - Filed July 12, 2011


        The defendant, Talmadge S. Crowder, challenges the revocation of his diversionary
status, maintaining that the trial court abused its discretion in determining that he violated
an Order of Protection and using that violation as a basis for the revocation. After a thorough
review of the record, we conclude that there was sufficient evidence for the trial court to
determine that the defendant violated the terms of his release by violating an Order of
Protection, and we affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Mike Mosier, Jackson, Tennessee (on appeal), and James Marshall, Columbia, Tennessee (at
trial) for the appellant, Talmadge S. Crowder.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Thomas H. Swink,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       Following the entry of his plea of guilty to a charge of aggravated statutory rape in
March 2010, the defendant was given a four-year suspended sentence and placed on judicial
diversion pursuant to Tennessee Code Annotated Section 40-35-313(a)(1)(A). On March 31,
1010, a violation of probation warrant was issued charging the defendant with violating an
Order of Protection. This warrant was amended some weeks later to include the defendant’s
subsequent arrest for domestic assault. Following a hearing on May 10, 2010, the trial court
found by a preponderance of evidence that the defendant had violated an Order of Protection
but dismissed the amended violation for domestic assault. The trial court revoked the
defendant’s probation, reinstated the judgment as originally entered, gave the defendant
credit for time served, and then reinstated the defendant’s probation and extended it for one
year. This appeal promptly followed.

       The defendant’s sole claim on appeal is that the trial judge abused his discretion by
revoking his diversionary status. When a defendant has been placed on judicial diversion
pursuant to section 40-35-313(a)(1)(A) and is accused of violating the conditions of his
release, trial courts should review the claim using the same standards and procedures as an
ordinary probation revocation. Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App.
2002). A trial court may revoke a defendant’s probation upon finding by a preponderance
of the evidence that the defendant has violated the probation’s conditions. T.C.A. §
40-35-311; State v. Shaffer, 45 S.W.3d 553(Tenn. 2001). A probation revocation will be
upheld on appeal unless there has been an abuse of discretion, which only occurs if the record
contains “no substantial evidence to support the conclusion of the trial court that a violation
of the conditions of probation has occurred.” Shaffer, 45 S.W.3d at 553.

        The foundation of the defendant’s claim is that the record lacks substantial evidence
to support the trial court’s determination that the defendant made several phone calls to his
ex-girlfriend’s phone, in violation of a previously-existing ex parte restraining order. At the
defendant’s revocation hearing, the defendant’s ex-girlfriend testified that the defendant
called her multiple times while the order was in effect and that, while all the calls came from
unrecognizable, unavailable, or restricted phone numbers, the defendant spoke to her on at
least two occasions and that she immediately recognized his voice from having been in a
relationship with him for more than eight years. During her testimony, the State introduced
the witness’s phone records, which partially corroborated her claims by showing that her cell
phone received incoming calls from unavailable or restricted phone numbers on the dates and
times in question. This evidence amply supports the trial judge’s conclusion that the
defendant violated the terms of his release.

        While the defendant did his best to challenge his ex-girlfriend’s testimony at the
revocation hearing by (1) establishing that she had a motive to fabricate her testimony in
order to retain control over some of the defendant’s furniture, (2) showing that she had made
prior inconsistent statements at a preliminary hearing, and (3) taking the stand himself and
testifying that he never contacted her, these efforts sufficed only to create a conflict with the
State’s evidence, not entirely erase it. “In probation revocation hearings, the credibility of
the witnesses is for the determination of the trial judge, who is in the best position to observe
witness demeanor.” State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005). In this
case, the trial judge resolved the credibility issue against the defendant, and we will not
disturb that conclusion on appeal.

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                               CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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