           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                              Assigned on Briefs November 6, 2012

                    STATE OF TENNESSEE v. JOSHUA M. FAULK

                     Appeal from the Circuit Court for Rutherford County
                            No. F-66410B      David Bragg, Judge


                   No. M2012-01075-CCA-R3-CD - Filed December 17, 2012


The defendant, Joshua M. Faulk, appeals the revocation of his community corrections
sentence and reinstatement of his original ten-year sentence for aggravated burglary, arguing
that the trial court abused its discretion in finding that he violated the terms of his sentence
based on new charges of theft and vandalism. Following our review, we affirm the judgment
of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and J OHN
E VERETT W ILLIAMS, JJ., joined.

Rick G. Mansfield, Murfreesboro, Tennessee, for the appellant, Joshua M. Faulk.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General; and Allyson S.
Abbott, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

                                                   FACTS

       On September 9, 2011, the defendant pled guilty to aggravated burglary, a Class C
felony, for which he was sentenced as a Range II, multiple offender to ten years, suspended
to community corrections. The “special conditions” section of the judgment sheet reflects
that the defendant was to serve six months1 and includes the notation, “See community


       1
           Although the judgment noted that the defendant was to serve six months, he apparently did not begin
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corrections order.” A “Conditions of Community Corrections Order” entered by the trial
court the same day as the judgment reflects that one of the terms of the defendant’s sentence
was to “[m]aintain good and lawful behavior.” The State of Tennessee Community
Corrections Order entered by the trial court on September 22, 2011, provides, among the
conditions of the defendant’s sentence, “I will obey all local, state and federal laws and
ordinances.” On October 7, 2011, a community corrections violation warrant was issued
based on the defendant’s September 27, 2011 arrest for theft of property and vandalism.

        At the defendant’s March 2, 2012 revocation hearing, Jeffrey Tenaglia, the
defendant’s community corrections officer, testified that he filed a violation petition based
on the defendant’s September 27, 2011 arrest for theft of property and vandalism. The
defendant reported the arrest to Tenaglia on September 29, 2011 and said that it was the
result of his taking scrap metal from someone’s yard for which he thought he had permission.

        Steve Hampton, the owner of a 125-acre farm in Murfreesboro, testified that on
September 27, 2011, he discovered that the chain on a gate on the back side of his property
had been cut and a 1928 air compressor was missing. He said that all of his property that was
accessible by road was fenced, that two “no trespassing” signs were posted on the gate, and
that there were several other signs stating “no hunting” and “keep off.” He described the air
compressor as “a tractor without a steering wheel. It’s got four wheels. It’s made back in
the old days to put on a job site. . . . Roughly it’s 8 foot long, 4 foot wide. I think it weighs
roughly two tons.” In order to move the air compressor, it had to be hooked up to a vehicle
and towed.

       Hampton said his air compressor was subsequently recovered at Averitt’s Salvage
Yard, and Mr. Averitt provided documentation of his purchase of the equipment. That
documentation included a photocopy of the defendant’s state identification card bearing his
photograph and a copy of a check dated September 26, 2011 made payable to the defendant
in the amount of $212.65, with the notation “scrap.” Hampton said that he did not give
anyone permission to cut the chain on his gate or remove the air compressor from his
property.

       Ricky Mahaffey testified that he had been charged in the crimes with the defendant.
He said the defendant told him he got the air compressor from his grandfather’s land. He
went with the defendant to the salvage yard but was not present when he got the air
compressor.



        1
         (...continued)
serving his sentence until October 7, 2011.

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        Kathy Robinson, the defendant’s mother, testified that the defendant had used drugs
in his teenage years and that she had heard he presently was using drugs but had not seen him
do so. She said that she believed a drug rehabilitation program would benefit the defendant
and that she would support him. On cross-examination, Ms. Robinson acknowledged that
she paid $300 to the salvage yard on October 11, 2011, “for returned scrap price and towing
fee on air compressor.” She said she did so because the defendant was in jail and “could not
do it himself.”

       At the conclusion of the hearing, the trial court revoked the defendant’s community
corrections sentence and ordered that he serve his original ten-year sentence in the
Department of Correction, with credit given for time served. This appeal followed.

                                        ANALYSIS

       The defendant contends that the trial court abused its discretion by revoking his
community corrections sentence because the court “reach[ed] its decision without
considering the fairly raised mistake of fact defense” as to his new charges for theft of
property and vandalism. The State responds that the testimony presented at the revocation
hearing “was more than sufficient for the court to have found by a preponderance of the
evidence that the defendant did not commit vandalism and theft under a mistake of fact and
that he thereby violated the conditions of his probation.” We agree with the State.

       A trial court may revoke a community corrections sentence upon finding by a
preponderance of the evidence that an offender violated the conditions of his suspended
sentence. See Tenn. Code Ann. § 40-36-106(e)(3)-(4) (2006); State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991). The trial court’s revocation of a community corrections sentence will
be upheld absent an abuse of discretion. Id. An abuse of discretion occurs if the record
contains no substantial evidence to support the conclusion of the trial court that a violation
of community corrections has occurred. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).

        We find no abuse of discretion in the trial court’s revocation of the defendant’s
community corrections sentence. In reaching its decision, the trial court found that the
testimony presented at the revocation hearing “provide[d] by more than a preponderance of
the proof that [the defendant] exercised possession and control over the property of Mr.
Hampton, that that property was removed from Mr. Hampton’s property, that it was taken
from Mr. Hampton’s property directly to Averitt[’s Salvage Yard] based on the testimony of
Mr. Hampton which the [c]ourt finds completely credible.” Implicit in the court’s ruling was
a rejection of the defendant’s claim that his theft occurred under the mistaken belief that he
had the property owner’s permission to take the property. As the State correctly points out,

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the evidence shows that the defendant provided two different explanations for his actions,
telling his community corrections supervisor that he had knocked on the door of the property
owner’s house and received permission to remove scrap metal from the property and telling
his co-defendant that he had obtained the air compressor from his grandfather. In addition,
the property owner testified that his property was posted with numerous no trespassing signs,
fenced, and closed off from the public with a locked gate, on which the chain had been cut.
We, therefore, conclude that the trial court’s revocation of the defendant’s community
corrections sentence was proper.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court revoking the defendant’s community corrections sentence and ordering that he serve
his original sentence in the Department of Correction.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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