        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 13, 2013

       STATE OF TENNESSEE v. DANIEL TYREE HUMPHREY

                 Appeal from the Criminal Court of Davidson County
                    No. 2009-I-83 J. Randall Wyatt, Jr., Judge


                No. M2012-01740-CCA-R3-CD - Filed March 15, 2013


Daniel Humphrey (“the Defendant”) pleaded guilty to aggravated burglary and, pursuant to
his plea agreement, was sentenced as a Range I, standard offender to three years on
community corrections. Upon the subsequent filing of a violation warrant, the Defendant
was taken into custody, and the trial court held an evidentiary hearing. At the conclusion of
the hearing, the trial court revoked the Defendant’s community corrections sentence and
ordered him to serve the remainder of his original sentence in confinement. The Defendant
appealed the trial court’s ruling. After a thorough review of the record and the applicable
law, we affirm the judgment of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

William Justin Conway, Nashville, Tennessee, for the appellant, Daniel Humphrey.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Senior Counsel; Victor
S. Johnson III, District Attorney General; and Brian Ewald, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

        The Defendant was indicted on February 4, 2009, on one count of aggravated
burglary. On February 10, 2009, the Defendant pleaded guilty to the indicted offense, and
the trial court sentenced the Defendant pursuant to the plea agreement to three years’
community corrections. The Defendant also was required to pay restitution to the victim in
the amount of $2,500.

       On June 27, 2012, a violation warrant was filed, alleging that the Defendant violated
one of the terms of his community corrections agreement “[w]hich states that the offender
shall obey all Federal, State, and Local laws.” The warrant alleged that the Defendant “was
arrested for Domestic Assault, Bodily Injury” on June 27, 2012.1

       The trial court held a hearing on this alleged violation on July 20, 2012. At this
hearing, Lanesha Walker, the Defendant’s ex-girlfriend, testified that on June 27, 2012, she
and the Defendant had a “heated argument” in the drive-through at McDonald’s. Walker
attempted to “distance” herself from the Defendant, so she got out of the car and started
walking to go inside the restaurant. Police officers were in a parking lot across the street, and
Walker assumed that they observed her getting out of the car. The police approached them
before she entered the restaurant.

        At the point that Walker got out of the vehicle, she claimed that the Defendant had not
touched her. However, she “was mad and upset and . . . told the officers that [the Defendant]
put his hands around [her] neck.” She also told the officers that the Defendant “pushed [her]
toward the driver’s side door,” but she claimed that this accusation actually was false.
Walker testified that, prior to this hearing, she told the State, “I would rather not testify
against [the Defendant], . . . but you told me that I had to.” She also acknowledged that,
during that conversation with the State, she admitted that “some of the things” in the warrant
were true. She then admitted telling the State that all the facts were true but that she was
reluctant to testify against the Defendant “[b]ecause he was doing well, he was going to
school, and he was helping me with my daughter.” On cross-examination, however, Walker
again claimed that the Defendant did not physically touch her on the night of the incident.

       Walker acknowledged that, on the night of this incident, she had a scratch on the left
side of her neck, but she stated that the scratch was from her dog and not the Defendant.
However, she did not give the officers any explanation when they asked her about the
scratch.

      Sergeant Terrence Bradley with the Metro Nashville Police Department testified that
he was working on June 27, 2012. He pulled into the drive-through at McDonald’s to get
some food and just happened to pull up behind the Defendant and Walker. He stated that


        1
          Although not clear from the record, it appears that the Defendant had prior violations of terms of
his community corrections sentence which resulted in the extension of his original community corrections
sentence.

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       at some point [Walker] . . . is out of the vehicle and she is very agitated, very
       excited. . . . She is yelling cuss words, . . . she was telling us stuff like, “Get
       his ass.” “He ain’t got no business putting his hands on me.” Stuff like that.
       [The Defendant] is outside. He is excited as well. I call for another car.
       Officer Terrazas gets there. . . . We get them separated.

              I talked to the [D]efendant first. He advised me that they were arguing
       about something that happened at the house, but he said he didn’t put his hands
       on her. We got [Walker] separated with Officer Terrazas. I go over to talk to
       her. She is advising that . . . they were arguing and she said that he choked
       her. She had a little, I mean, it wasn’t a big scratch . . . across her neck. At
       that point, I advised Officer Terrazas to take the [D]efendant into custody. At
       that point she later recanted her story and said that she lied to us.

       Sergeant Bradley agreed that Walker recanted her story when she realized that they
were arresting the Defendant. He recalled that “she just kept saying . . . that she needed him,
so to watch her kids, and I assume that is why she recanted her story.”

        At the conclusion of the hearing, the trial court found by a preponderance of the
evidence that the Defendant placed his hands on Walker and “that they were causing all kinds
of disorderly activity where children are going to McDonalds.” Regarding Walker’s
testimony, the court found that “it is obvious that she is trying to take care of or help” the
Defendant. The trial court noted Walker’s admission to the State prior to the hearing that the
facts in the warrant were true but that she did not want to prosecute the Defendant. Further,
the court stated, “[The Defendant] is helping her and she hates to see him have this revoked.”
Given its findings from the hearing and the fact that the Defendant had “five or six prior
violations,” the trial court revoked the Defendant’s probation, requiring the Defendant to
serve the remainder of his sentence in incarceration. The Defendant timely appealed.

                                           Analysis

       The Defendant asserts that the trial court erred in revoking his community corrections
sentence. “Given the similar nature of a community corrections sentence and sentence of
probation, . . . the same principles are applicable in deciding whether a community
corrections sentence revocation was proper.” State v. Harkins, 811 S.W.2d 79, 83 (Tenn.
1991). In a probation revocation proceeding, the State must prove that the defendant violated
the terms of his or her probation only by a preponderance of the evidence. Id. Once the State
has met its burden of proof, the subsequent decision regarding revocation lies within the
sound discretion of the trial judge. See, e.g., State v. Walker, 307 S.W.3d 260, 263 (Tenn.
Crim. App. 2009); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).


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        Therefore, on appeal, we will not disturb the trial court’s decision to revoke probation
absent an abuse of discretion. State v. Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011);
see also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). 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.” Farrar, 355 S.W.3d at 586 (quoting State v. Phelps, 329
S.W.3d 436, 443 (Tenn. 2010)).

      Tennessee Code Annotated section 40-36-106(e)(4) (2010) provides that, in the
context of a community-based alternative to incarceration,

       [t]he court shall also possess the power to revoke the sentence imposed at any
       time due to the conduct of the defendant or the termination or modification of
       the program to which the defendant has been sentenced, and the court may
       resentence the defendant to any appropriate sentencing alternative, including
       incarceration, for any period of time up to the maximum sentence provided for
       the offense committed, less any time actually served in any community-based
       alternative to incarceration. The resentencing shall be conducted in
       compliance with § 40-35-210.

       Following the revocation hearing, the trial court found that the Defendant placed his
hands on Walker and “that they were causing all kinds of disorderly activity where children
are going to McDonalds.” Regarding Walker’s testimony, the court found that “it is obvious
that she is trying to take care of or help” the Defendant. The trial court noted Walker’s
admission to the State prior to the hearing that the facts in the warrant were true but that she
did not want to prosecute the Defendant. Further, the court stated, “[The Defendant] is
helping her and she hates to see him have this revoked.” Thus, the trial court found that the
State carried its burden in establishing the Defendant’s violation by a preponderance of the
evidence.

        We conclude that the trial court did not abuse its discretion. The violation warrant
alleged that the Defendant violated the term of his community corrections agreement
“[w]hich states that the offender shall obey all Federal, State, and Local laws.” The warrant
further alleged that the Defendant “was arrested for Domestic Assault, Bodily Injury” on
June 27, 2012. Although Walker denied at the evidentiary hearing that the Defendant
touched or harmed her physically, she admitted that she “told the officers that [the
Defendant] put his hands around [her] neck.” She also told the officers that the Defendant
“pushed [her] toward the driver’s side door.” Walker testified that, prior to the hearing, she
told the State, “I would rather not testify against [the Defendant], . . . but you told me that I
had to.” She also acknowledged that, during that conversation with the State, she admitted


                                               -4-
that all the facts in the warrant were true but that she was reluctant in testifying against the
Defendant “[b]ecause he was doing well, he was going to school, and he was helping me
with my daughter.”

       Sergeant Bradley testified that, when he spoke to Walker at the scene, she stated that
the Defendant choked her. He observed a scratch across her neck. Although Walker
acknowledged having this scratch, she stated at the hearing that it was from her dog and not
the Defendant. However, she did not give the officers any explanation when they asked her
about the scratch at the time of this incident. According to Sergeant Bradley, after Sergeant
Officer Terrazas took the Defendant into custody, Walked then “recanted her story and said
that she lied to us.” He recalled that “she just kept saying . . . that she needed him, so to
watch her kids, and I assume that is why she recanted her story.”

        The Defendant asserts that the trial court improperly discredited Walker’s testimony
that the Defendant never touched her. However, we recognize that in 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). We conclude that the trial court did not abuse its discretion in finding that the
Defendant violated the terms of his community corrections sentence. Accordingly, we affirm
the trial court’s decision to revoke the Defendant’s community corrections sentence and
require that he serve his original sentence, with credit for time previously served.

                                       CONCLUSION

       For the reasons set forth above, we affirm the judgment of the trial court.


                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




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