             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                FILED
                            AUGUST 1998 SESSION
                                                            September 11, 1998

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
STATE OF TENNESSEE,           )
                              )      C.C.A. No. 01C01-9708-CC-00369
      Appellee,               )
                              )      Maury County
v.                            )
                              )      Honorable Jim T. Hamilton, Judge
SCOTT ALLAN BYTWERK,          )
                              )      (Probation Revocation)
      Appellant.              )




FOR THE APPELLANT:                   FOR THE APPELLEE:

William C. Bright                    John Knox Walkup
Assistant Public Defender            Attorney General & Reporter
128 North Second Street              425 Fifth Avenue, North
Pulaski, TN 38478                    Nashville, TN 37243-0493

OF COUNSEL:                          Janis L. Turner
                                     Assistant Attorney General
Shara A. Flacy                       425 Fifth Avenue, North
District Public Defender             Nashville, TN 37243-0493
128 North Second Street
Pulaski, TN 38478                    T. Michael Bottoms
                                     District Attorney General
                                     P. O. Box 459
                                     Lawrenceburg, TN 38464-0459

                                     Lawrence R. Nickell, Jr.
                                     Assistant District Attorney General
                                     P. O. Box 459
                                     Lawrenceburg, TN 38464-0459




OPINION FILED: ____________________________________



AFFIRMED



L. T. LAFFERTY, SPECIAL JUDGE

                                   OPINION
         The defendant, Scott Allan Bytwerk, appeals as of right from a ruling of the Maury

County Circuit Court revoking his post-plea diversion placement. The defendant complains

the trial court erred in revoking his post-plea diversion based upon the evidence heard at

the revocation hearing. After an appropriate review of the record, the briefs submitted by

the parties, and the law governing the issue presented for review, it is the opinion of this

Court that the judgment of the trial court is affirmed.



                                         HISTORY



         On March 5, 1997, the defendant was convicted in the General Sessions Court of

Maury County for simple assault and allowing dogs to run at large. On March 7, 1997, the

defendant appealed the convictions to the Maury County Circuit Court demanding a jury

trial.   Then began the turbulent relationship between the defendant, his next-door

neighbors, and the Maury County Circuit Court. On April 3, 1997, the State believed it

necessary to file a motion requesting that certain conditions be placed on the defendant’s

appearance bond, such as that the defendant’s farm animals be confined to his property

and not trespass onto the property of his neighbors. As was expected, the defendant, in

the eyes of the State, violated the conditions of bail release and the trial court revoked the

defendant’s appearance bond and ordered that all of the defendant’s animals be

destroyed. Later, the trial court permitted the animals to be sold in lieu of destruction. As

part of the revocation order, the defendant was ordered to undergo a psychiatric

examination.



         On May 15, 1997, the defendant, through his attorney and the State, applied for

post-plea diversion. The trial court so ordered judicial diversion for a period of eleven

months and twenty-nine days with the condition the defendant would remain in jail pending

the completion of the mental examination and the trial court’s review of the results.

Further, the defendant was to have no contact with the neighbors. On July 21, 1997, the

State moved to revoke the defendant’s judicial diversion and the trial court set a hearing



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for July 22, 1997. Based on the testimony in this record and the history of this case, the

trial court revoked the defendant’s judicial diversion and reinstated the defendant’s original

sentence.



                                 REVOCATION HEARING



       The State called Mr. Cregg Harris, the defendant’s next-door neighbor, in support

of the motion to revoke diversion. Mr. Harris related three (3) incidents where he believed

the defendant violated the trial court’s order. The first incident occurred when the

defendant wrote on his window or put up a sign that read “Liar, Liar.” The Harrises ignored

the words. The second incident was when Mr. Harris was driving his vehicle along his

property line and observed the defendant feeding some animals. The defendant started

walking towards Mr. Harris’s vehicle, beating his fist in his hand. Mr. Harris pulled off and

the defendant quit approaching the fence. The third incident was when Mr. Harris’s

stepson and friend were playing in the yard with a dog. The defendant called the dog to

his property and the dog has not been seen since. Also, Mr. Harris observed the

defendant with new animals in contradiction to the trial court’s order. Mr. Harris admitted

none of the animals had ever entered his property, nor had the defendant come on Mr.

Harris’s property.



       Mrs. Carol Harris related to the trial court that on July 21, 1997 she received a

phone call from a man who said something to the effect, “Jesus saves those that confess

their sins.” Mrs. Harris panicked and hung up the phone. Later that afternoon, Mrs. Harris

observed something written in the defendant’s window facing their home, a sign saying

“Jesus saves, Romans 10:9" and “Ask him.” Mrs. Harris admitted she could not identify

the voice of the caller. Also, Mrs. Harris testified she was anxious about the defendant

based on past incidents.



       The defendant testified in his own behalf as well as Mr. William Brisco and the

defendant’s father, Mr. Jerry Bytwerk. Mr. Brisco, employed at Columbia State Community



                                              3
College, advised the trial court he would permit the defendant to stay at his home for a

short period of time and would assist the defendant. Mr. Brisco admitted he advised the

defendant to put up the “Jesus Saves” sign and the one that said “Liar, Liar.” Mr. Brisco

stated, “my feeling was that that was a positive sign out of the Bible rather than a criticism

of ‘Liar, Liar’ . . . it was a mistake for me to advise him that, but I did.”



       Mr. Jerry Bytwerk, the defendant’s father, advised the trial court he planned to sell

the property. Also, his son had agreed not to return to the property. Mr. Bytwerk admitted

he and his wife had had problems with their son in the past, even to the extent of obtaining

a no contact court order against the defendant. The witness agreed there remained

approximately 50 poultry, turkeys, geese, pheasants, and ducks on the property.



       The defendant advised the trial court he did not wish to live on the property because

the Harrises harassed him and gave him no peace whatsoever. The defendant testified,

“I have never wanted to have anything to do with the Harris’. I just wanted them to be my

friends at first and then they didn’t want me living there and so they’ve tried to move me

out and they’ve succeeded.” The defendant agreed to never go on the road where the

Harrises live. As to the signs, the defendant stated, “those signs that are in my windows

are to say positive things. They’re not to be destructive or subliminal--I don’t know what

they said.”



       Based on this evidence, the trial court found the defendant violated the conditions

of the no contact order as well as the post-plea diversion agreement.



       The standard by which we review a revocation of judicial diversion is abuse of

discretion.



       “In order for a reviewing Court to be warranted in finding an abuse of discretion in

a probation revocation hearing, it must be established that the record contains no

substantial evidence to support the conclusion of the trial judge that a violation of the



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conditions of probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).



       We also note that the trial court was entitled to revoke probation upon a finding by

the preponderance of the evidence that the defendant violated several conditions of

probation. T.C.A. § 40-35-311(d).



       Since this hearing concerned a post-plea diversion agreement, this Court will

assume it was granted under the requirements of T.C.A. § 40-35-313(a). Thus, the

standard in reviewing a revocation of judicial diversion would be an abuse of discretion.



       The trial court in its ruling for revoking the post-plea diversion stated:

               All right, Mr. Bytwerk, I’m going to revoke your post-plea
               diversion for these reasons. I think you clearly have violated
               the no contact order. I don’t know what goes through your
               mind. I’m not a psychiatrist. I probably should be, but I’m not.
               I don’t know what you think. But, I mean, the actions you’ve
               taken could be for one purpose and one purpose only, and
               that’s to contact these people--not physically, but in a way
               maybe even more devious than physical contact. You don’t
               pay any attention to anything that I say, anything that I suggest
               to you.



       In sum, we conclude that the record on appeal clearly justifies the trial court’s finding

that the defendant violated the conditions of his post-plea diversion. The judgment of the

trial court is affirmed.




                                            _____________________________________
                                            L. T. LAFFERTY, SPECIAL JUDGE




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CONCUR:



________________________________
JOHN H. PEAY, JUDGE



________________________________
THOMAS T. WOODALL, JUDGE




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