        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 17, 2013

         STATE OF TENNESSEE v. JAMES WILLIAM AXFORD, II

                  Appeal from the Circuit Court for Warren County
                     No. F12710     Larry B. Stanley, Jr., Judge




                  No. M2012-01530-CCA-R3-CD - Filed May 8, 2013


In this delayed appeal, the defendant, James William Axford, II, contends that the trial court
erred by revoking his probation and ordering that he serve in confinement the originally
imposed sentence of three years for his convictions of fraudulently obtaining a controlled
substance, evading arrest, identity theft, and aggravated assault. Discerning no error, we
affirm.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Tammy H. Womack, McMinnville, Tennessee (on appeal); and Dan Bryant and Trenena
Wilcher, Assistant District Public Defenders (at hearing), for the appellant, James William
Axford, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Tom Miner, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               The defendant pleaded guilty on February 23, 2011, to fraudulently obtaining
a controlled substance, two counts of felony evading arrest, identity theft, and aggravated
assault, and he received a total effective sentence of three years to be served on probation.
On September 14, 2011, a probation violation warrant issued alleging that the defendant had
violated the terms of his probation by sexually assaulting a 12-year-old girl.
               At the January 11, 2012 revocation hearing, the defendant’s probation
supervisor, Scott Muncey, testified that the defendant telephoned him on September 6, 2011,
and alerted him to an “incident” that had occurred over Labor Day weekend in 2011.
According to Mr. Muncey, it was “alleged that [the defendant] had placed his hands on a 12
year old minor causing her to leave the residence in what is believed to be fear.” Mr.
Muncey said that he filed a probation violation report alleging that the defendant had violated
the terms of his probation by engaging in “assaultive, abusive, or threatening or intimidating
behavior.”

               Upon cross-examination, Mr. Muncey acknowledged that the defendant had
reported as required and was generally “doing okay” on probation. Mr. Muncey again
acknowledged that the defendant had self-reported the incident, testifying, “He informed me
that the Sheriff’s Department had been out to his trailer, gave a brief synopsis of what had
happened and then requested to come in and see me sooner than he was actually scheduled
to.” Mr. Muncey said that the defendant’s “take on the situation was that . . . the victim of
the case, ran out of his residence, after he had made a racial slur, to a neighbor’s home and
she was wielding a knife in apparent fear.” The defendant told Mr. Muncey that the victim
“apparently became irate at the racial slur and ran across the yard to the neighbor’s house and
informed the neighbor they needed to call the police that [the defendant] had touched her.”
He clarified that the defendant denied touching the victim. Mr. Muncey said that he did not
believe the defendant’s version of events, saying, “I wouldn’t assume that a 12 year old girl
would arm herself with a knife and then run from the residence saying she needed someone
to call the Sheriff’s Department.” He testified that “[a]fter further investigation in talking
with the detective that responded to the phone call there seemed to be enough information”
to support the filing of a probation violation report.

                Jackson County Sheriff’s Department Investigator Mark Micah testified that
he responded to a call at approximately 8:00 p.m. on August 30, 2011, that “a minor female
subject” had come to a neighbor’s house “crying and carrying a large knife” and claiming
“that the male subject that she was staying with while her parents were out of town had
touched her in a bad location on her body.” Investigator Micah said that he “spoke to the
people that were there at the residence” as well as the alleged victim, whom he described as
“very, very upset.” He recalled that when the defendant entered the residence, “this child
jumped up and ran crying to another room.” He said that the victim was initially reluctant
to talk to the investigator and that he was able to get more information from the neighbors.
He then confronted the victim with the information he had received, and she told him “that
she was inappropriately touched, that they had been watching a movie . . . . that she had told
[the defendant] not to come near her. If he did she would stab him with the knife. She also
stated that they were watching some kind of pornographic movie.” The victim told him “that
she ran out of the residence, went to one neighbor’s house and no one was home and then she

                                              -2-
went to the other neighbor’s house on the opposite side” of the defendant’s residence.
Investigator Micah testified that he recovered the knife from the neighbor.

               Upon questioning by the court, Investigator Micah clarified that the victim
“stated that [the defendant] had touched her in a bad location on her body, in her vaginal
area.”

               Jane Montgomery, a forensic interviewer at the Upper Cumberland Child
Advocacy Center, testified that she interviewed the victim regarding the August 30, 2011
incident at the defendant’s residence. Ms. Montgomery summarized the victim’s account:

              She was at a trailer that she lived at, which it was my
              understanding from the child that [the defendant] lived there as
              well. She and [the defendant] were alone in the trailer watching
              a movie in his room and at some point during that time he turned
              on what the child described as, “a nasty movie,” and the child
              described that as, “adults doing bad stuff and they were wearing
              nothing.” He, at that time, asked if he could do those things to
              her and according to the child he took his hand and touched
              between her legs, what she referred to as “down there” and what
              she later identified on the body charts as her vagina. At that
              point there was a bit of a struggle. The child got up, ran to the
              kitchen, got a knife, and then ran to a neighbor’s and the
              neighbors called the police and the police came.

The victim reported being “scared” during the incident.

              The defendant offered no proof, and at the conclusion of the hearing, the trial
court revoked the defendant’s probation based upon its finding that the defendant had
violated the terms of his probation as alleged in the warrant. The court ordered that the
defendant serve the balance of his sentence in confinement.

               The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court abuses its
discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases its
ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an
injustice to the complaining party.” State v. Terry Phelps, 329 S.W.3d 436, 443 (Tenn.
2010). The 1989 Sentencing Act expresses a burden of proof for revocation cases: “If the
trial judge finds that the defendant has violated the conditions of probation and suspension

                                              -3-
by a preponderance of the evidence, the trial judge shall have the right by order duly entered
upon the minutes of the court to revoke the probation and suspension of sentence. . . .”
T.C.A. § 40-35-311(e)(1).

               Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation and
“[c]ause the defendant to commence the execution of the judgment as originally entered, or
otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614 S.W.2d 71,
73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment so rendered by
the trial judge shall be in full force and effect from the date of the revocation of such
suspension.” Id. § 40-35-310.

                 The defendant avers that the trial court erred by admitting hearsay evidence
during the revocation hearing. The State contends that reliable hearsay is admissible during
probation revocation proceedings. Because “the issue in a probation revocation proceeding
is not the guilt or innocence of the defendant, the right to confront and cross-examine adverse
witnesses is not absolute and may be relaxed under certain circumstances.” State v. Wade,
863 S.W.2d 406, 407 (Tenn. 1993). Recognizing the need “to preserve the flexible, informal
nature of the revocation hearing, which does not require the full panoply of procedural
safeguards associated with a criminal trial,” Black v. Romano, 471 U.S. 606, 613 (1985),
courts considering the admissibility of evidence at a probation revocation proceeding have
concluded that due process principles rather than the rules of evidence govern, see Wade, 863
S.W.2d at 407; Morrissey v. Brewer, 408 U.S. 471, 487 (1972).

               Here, the trial court permitted the State’s witnesses to recount the victim’s
version of the offense committed against her by the defendant. The court likewise permitted
Mr. Muncey, upon questioning by the defendant, to offer the defendant’s out-of-court
rendition of the events. The court determined that all of the hearsay testimony was reliable
and found, albeit implicitly, that the admission of the testimony did not violate principles of
due process. We cannot say that the trial court erred by admitting the testimony. See State
v. Andra Dennis, No. W2010-00259-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Jackson,
Oct. 20, 2010) (“A trial court may admit reliable hearsay evidence in a probation revocation
hearing so long as the opposing party is given a fair opportunity to rebut the evidence and the
evidence was not ‘secured in violation of the United States or Tennessee constitutions.’”
(quoting T.C.A. § 40-35-209(b) (Supp. 2009), and citing Wade, 863 S.W.2d at 409).

             The defendant also contends that the trial court erred by revoking his probation
because “there was just not enough credible evidence in the record to sustain a conviction
beyond a reasonable doubt” given that “[t]he evidence presented against the defendant is
highly circumstantial.” We remind the defendant, however, that the State bears the burden

                                              -4-
of proving probation violation allegations by a preponderance of the evidence and not beyond
a reasonable doubt.1 See T.C.A. § 40-35-311(e)(1).

              Here, the evidence established that the 12-year-old victim arrived at a
neighbor’s house visibly shaken, wielding a knife, and reporting that the defendant had
touched her inappropriately. The victim repeated the story to Investigator Micah, confirming
that the defendant had touched her “in a bad place” after the two watched “some kind of
pornographic movie.” Investigator Micah described the victim as “very, very upset.” Ms.
Montgomery related that the victim told her that the defendant touched her vagina after
asking if he could perform on her the same acts depicted in a pornographic movie. The
victim told Ms. Montgomery that she was scared during the incident, which emotion was
confirmed by the victim’s running terrified from the residence while wielding a knife. The
defendant’s conduct clearly qualified as “assaultive, abusive, or threatening or intimidating
behavior,” which was strictly prohibited by the terms of his probation. Under these
circumstances, the trial court did not err by revoking the defendant’s probation and ordering
him to serve the balance of his sentence in confinement.

               Accordingly, the judgment of the trial court is affirmed.


                                                       _________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




       1
         We also remind the defendant that, even if the burden of proof were beyond a reasonable doubt,
“direct and circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

                                                 -5-
