        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs March 25, 2015 at Knoxville

              STATE OF TENNESSEE v. CHARLES RILEY, JR.

                 Appeal from the Criminal Court for Wilson County
                   No. 2012CR185     David Earl Durham, Judge



                 No. M2014-01652-CCA-R3-CD – Filed May 1, 2015



Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order
revoking his probation, arguing the trial court abused its discretion when it determined
that he violated probation. Upon review, we affirm the judgment of the trial court.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JOHN
EVERETT WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Adam Wilding Parrish, Lebanon, Tennessee, for the appellant, Charles Riley, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Tom P. Thompson, District Attorney General; and Thomas Swink,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       On March 11, 2013, the Defendant pleaded guilty to aggravated domestic assault,
a Class C felony. Pursuant to a plea agreement, the trial court sentenced the Defendant,
as a Range II multiple offender, to eight years and suspended the Defendant’s sentence to
supervised probation.

       On June 25, 2014, the trial court issued a violation of probation warrant, which
alleged that the Defendant had violated the following rules of probation:
           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.

           Rule #9: I agree to pay all required fees to the Supervision and Criminal
           Injuries Fund unless waived by appropriate authorities. Additionally, if so
           ordered by the court, I will pay all imposed fines, court costs, and
           restitution.

           Rule #14: I will not engage in any assaultive, abusive, threatening or
           intimidating behavior. I will not behave in a manner that poses a threat to
           others or myself.

       At the subsequent probation revocation hearing, the Defendant’s probation officer,
Nicole Clay, testified that she filed the violation of probation warrant against the
Defendant based upon his arrest on new charges of aggravated domestic assault and
interference with an emergency call1 and because the Defendant was behind on the
payment of his court costs, restitution, and probation fees. Ms. Clay explained that the
Defendant last made a payment in October 2013 and still owed $1,375.80.

        Brandi Ballinger, the Defendant’s girlfriend and mother of his children, testified
that she charged the Defendant with aggravated domestic assault after the Defendant
punched her in the back and choked her during a dispute. Ms. Ballinger explained that
the altercation with the Defendant ended when her daughter screamed and Ms. Ballinger
threatened to call the police. The Defendant then grabbed Ms. Ballinger’s cell phone,
“tossed it,” and left the scene. Immediately after the incident, Ms. Ballinger reported the
assault to the police and sought a warrant from a judicial commissioner. Ms. Ballinger
testified that the Defendant caused bruising on her back and “marks around [her] throat,”
which the officer observed. Ms. Ballinger acknowledged that she later asked the District
Attorney’s Office to dismiss the charges against the Defendant because she did not want
the Defendant to go to prison. Nevertheless, Ms. Ballinger testified that the allegations in
the assault warrant were true.

       On cross-examination, Ms. Ballinger acknowledged that, in the early morning
hours before the assault, she and the Defendant “were texting back and forth” and she
threatened that, if he did not come home, she would have him “put in jail.” She also
acknowledged that, in another text message sent to the Defendant a few days before the
assault, she threatened to have the Defendant charged with theft of property.



           1
               Ms. Clay testified that the Defendant’s new charges were pending at the time of the revocation
hearing.
                                                        -2-
       The Defendant testified and acknowledged that he was behind on his payments
toward costs and restitution. He explained that his failure to pay stemmed from various
other financial obligations. The Defendant denied that he assaulted Ms. Ballinger. To
support his claim, he offered proof of text messages he had received from Ms. Ballinger
in the days leading up to the alleged assault, in which Ms. Ballinger stated she was going
to take out a warrant against the Defendant for theft of property and have him “put in
jail.”

       At the conclusion of the hearing, the trial court found that the Defendant violated
his probation by failing to pay costs, probation fees, and restitution. Additionally, the
court found, by a preponderance of the evidence, that the Defendant committed a new
offense against Ms. Ballinger, accrediting Ms. Ballinger’s testimony about the assault
over that of the Defendant’s. Based upon these findings, the trial court revoked the
Defendant’s probation and ordered the Defendant to serve his sentence in confinement.
This timely appeal followed.

                                        Analysis

       The Defendant contends that the trial court abused its discretion in revoking his
probation. He argues that the only evidence that he violated his probation by committing
a new offense came from Ms. Ballinger, and that her testimony regarding the assault was
not credible. The State responds that the trial court acted within its discretion when it
accredited Ms. Ballinger’s testimony and properly found that the Defendant’s arrest for
assault provided a basis for the revocation of the Defendant’s probation. We agree with
the State.

       Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of his or her probation, a trial court may revoke probation and order the
imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311; State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling
on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse
of discretion, a defendant must show that there is “no substantial evidence” in the record
to support the trial court’s determination that a violation of probation has occurred. Id.
Proof of a violation does not need to be established beyond a reasonable doubt. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if a trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e).



                                           -3-
        Upon finding a violation, the trial court is vested with the statutory authority to
revoke the probation and suspension of sentence and “[c]ause the defendant to commence
the execution of the judgment as originally entered.” Tenn. Code Ann. § 40-35-
311(e)(1)(A). Furthermore, when probation is revoked, the trial judge may order “the
original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension.” Tenn. Code Ann. § 40-35-310(a). The trial court retains
the discretionary authority to order the defendant to serve the original sentence. See State
v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

        The Defendant’s argument on appeal essentially invites this Court to reweigh the
evidence and accredit the Defendant’s testimony that he did not assault Ms. Ballinger.
However, in probation revocation hearings, the credibility of witnesses is for the
determination of the trial judge, and the trial judge’s findings have the weight of a jury
verdict. State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In this case, the
trial court heard the proof and accredited the State’s witnesses. The trial court explained
that it took into consideration the witnesses’ demeanor on the stand and their prior
criminal convictions, as well as the court’s experience in handling domestic assault cases.
It is not the province of this Court to second guess the trial judge’s determination with
regard to the credibility of witnesses. See State v. Eric Pernell Taylor, No. M2011-
01996-CCA-R3-CD, 2013 WL 709299, at *3 (Tenn. Crim. App. Feb. 26, 2013), no
appeal filed; State v. Robert Kenneth Dubose, No. W2011-01422-CCA-R3-CD, 2012
WL 1656922, at *3 (Tenn. Crim. App. May 9, 2012), perm. app. denied, (Tenn. Aug. 15,
2102); State v. Stephanie Mayfield, No. W2008-02534-CCA-R3-CD, 2010 WL 322649,
at *6 (Tenn. Crim. App. Jan. 26, 2010), no appeal filed.

        Moreover, there clearly was substantial evidence to support the trial judge’s
finding that the Defendant assaulted Ms. Ballinger. Ms. Ballinger testified that, during an
argument, the Defendant punched her in the back and choked her. She immediately
reported the incident to the police, and an officer observed bruising on Ms. Ballinger’s
back and “marks around [her] throat.” By assaulting Ms. Ballinger, the Defendant
violated Rule 1 and Rule 14 of his probation. As a result, we conclude that the trial court
did not abuse its discretion by revoking the Defendant’s probation. The Defendant is not
entitled to relief.

                                       Conclusion

       For the aforementioned reasons, we affirm the judgment of the trial court.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE
                                            -4-
-5-
