         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      April 2000 Session

            STATE OF TENNESSEE v. LESTER DOUGLAS GILES

                     Appeal from the Criminal Court for Monroe County
                            No. 98-156   Carroll L. Ross, Judge



                                 No. E1999-02236-CCA-R3-CD
                                         July 31, 2000

On June 21, 1999, the defendant pled guilty in the Monroe County Criminal Court to attempted rape
and was sentenced to four years as a Range I standard offender. The sentence was suspended, and
he was placed on probation. On July 6, 1999, a probation violation was issued, alleging that the
defendant had violated his probation by having contact with the victim’s family. Following a
hearing on August 16, 1999, the trial court ruled that the defendant had violated the terms of his
probation, a ruling which the defendant timely appealed. Based upon our review, we reverse the
judgment of the trial court and reinstate the defendant’s probation.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL , JJ., joined.

Steve McEwen, Mountain City, Tennessee; Charles M. Corn, District Public Defender; and William
C. Donaldson, Assistant Public Defender (on appeal) and Thomas Kimball, Assistant Public
Defender (at trial) for the appellant, Lester Douglas Giles.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Chalmers Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       The defendant, Lester Douglas Giles, appeals as of right from the order of the Monroe
County Criminal Court revoking his probation and requiring him to serve his four-year sentence for
attempted rape. He contends that the trial court abused its discretion in finding that he had contact
with the victim’s family in violation of the terms of his probation.

       The defendant pled guilty to attempted rape and received a four-year sentence as a Range I,
standard offender, to be served on probation. As a condition of probation, the defendant was ordered
to have no contact with the victim or her family. The affidavit for the probation violation warrant
states that the defendant “approached the victim’s father . . . and stepmother . . . at Cancun’s
Restaurant” and “verbally and physically assaulted [the father].”1

        At the revocation hearing, Susan Dodge testified that she is the girlfriend of the victim’s
father, Don Caylor. She said that she and Mr. Caylor were eating at Cancun Restaurant on July 2,
1999, when the defendant drove past the restaurant to the adjacent hotel where he was staying. She
said that the defendant made eye contact with them but then parked his car and walked upstairs to
his room. A short time later, the defendant came out of his room and began walking towards her.
She went inside to call the police and, when she came outside, the defendant began yelling at her and
accusing her of harassing him. She said that Mr. Caylor, who was around the corner from where she
was standing, began yelling at the defendant. She said that the defendant turned the corner and that
when she turned the corner and saw the men, they were in a fight. Ms. Dodge was the only witness
called by the State.

        The defendant testified that he had been staying with his father in the hotel adjacent to
Cancun Restaurant awaiting his transfer order to Virginia. He received the order on July 2, but it
was dated July 7. Thus, he said that he could not go to Virginia until July 7. He said that when he
and his father left the hotel to go to dinner on July 2, he noticed people sitting in a white Toyota in
the hotel parking lot. He said that the people were staring at him and that one person made an
obscene gesture.

         The defendant testified that he and his father went to dinner and returned to the hotel. They
were in their room for several hours when they heard a loud bang on the door. The defendant looked
outside and saw one of the women walking away who had been in the Toyota. He decided to go
downstairs to see if anyone had damaged his car. He said that when he reached the bottom of the
stairs, Susan Dodge approached him and said, “You’re in for it now.” He said that Mr. Caylor then
approached him, grabbed a shot glass and threw it at him, hitting him in the hip. He headed toward
the stairs in order to go to his room and call the police, but Mr. Caylor got in front of him and raised
his fists. The defendant punched Mr. Caylor and was then attacked by Mr. Caylor, Susan Dodge,
and two others. He said that he was punched, kicked, and dragged over the asphalt. Photographs
were admitted into evidence showing injuries consistent with the defendant’s description. The
defendant testified that after the incident, he was treated at the hospital for his injuries. He said that
he and his father then went to Virginia.

        The defendant’s father, Lester A. Giles, Jr., corroborated the defendant’s testimony. Mr.
Giles testified that when he went down to the parking lot to check on his son, who had already been
injured, Susan Dodge and apparently others were screaming “Baby raper.” Mr. Caylor told Mr.
Giles, “I’ll kill you[,] too.” Further, Mr. Giles testified that he and his son had been to the Bi-Lo
grocery store the previous day and, as they reached the store entrance, a black car driven by Mr.
Caylor stopped beside them. Ms. Dodge, the passenger in the car, rolled down her window,


        1
         We note that although the warrant refers to the victim’s “stepmother,” the evidence at trial showed that she
was actually the girlfriend of the victim’s father.

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“hollered” at them, “Are you nervous yet?” and then began laughing as she rolled up the window
and the car drove off.

       The trial court noted the divergent testimony but, unfortunately, did not make a credibility
determination. Essentially, it concluded that whether the defendant’s testimony or Ms. Dodge’s
testimony was believed, the evidence showed that the defendant made contact with the victim’s
family in violation of the probation order. The court noted that, with respect to the defendant’s
testimony, the defendant should not have left his hotel room and hit Mr. Caylor. With respect to Ms.
Dodge’s testimony, the court noted that the defendant should not have approached Ms. Dodge and
Mr. Caylor at the restaurant.

         The decision to revoke probation is within the discretion of the trial court. See State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978). Upon revoking probation, the trial court has the discretion to
order the original sentence to be served. See Tenn. Code Ann. §§ 40-35-310, -311(d). An abuse of
discretion may be found only if the record contains no substantial evidence to support the conclusion
of the trial court. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

        With respect to the defendant’s testimony, the trial court stated that revocation was proper
because the defendant “went over and hit Don Caylor when he got mad at him down there.”
However, the defendant’s testimony shows that when he went downstairs to check on his car, Mr.
Caylor, who did not testify, threw a shot glass at him. When the defendant tried to go upstairs to call
the police, Mr. Caylor prevented him from leaving and raised his fists. The defendant’s testimony
shows that his striking Mr. Caylor was not out of anger but rather necessity. Although we agree with
the trial court that it may have been wiser for the defendant to have remained in his hotel room
instead of going outside, we believe that the defendant’s purpose was to check on his car, which he
had a right to do, and that he could have done so without having contact with the victim’s family.
We do not believe that the defendant’s attempts to defend himself in the midst of an attack constitute
the type of contact sufficient to justify a probation revocation.

        If Ms. Dodge’s testimony is believed, the defendant approached her and began yelling at her.
Mr. Caylor then yelled at the defendant, the defendant approached, and a fight ensued. We agree
that approaching and yelling at Ms. Dodge was inappropriate, although we note that she was not
covered by the “no contact” provision. On the other hand, the defendant’s approaching Mr. Caylor
would constitute an unjustifiable violation of the “no contact” provision.

        However, the record gives no indication of whose testimony is more credible. The failure
of Mr. Caylor to testify is of interest. In any event, we cannot, under these circumstances, conclude
by a preponderance of the evidence that the defendant violated the terms of his probation.

         We are mindful that “a revocation decision is best tested by whether such an action would
serve the ends of justice and be in the best interest of both the public and the defendant/appellant.”
State v. Mitchell, 810 S.W.2d 733, 736 (Tenn. Crim. App. 1991). The record shows that at the time
of the incident, the defendant was trying to get transferred out of Tennessee and into Virginia, and
it further shows that the defendant did move to Virginia after the incident. In addition, the defendant

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had successfully complied with the other terms of his probation, including taking his medication
regularly. We believe that justice and the interests of the public and the defendant would best be
served by allowing the defendant to serve the remainder of his probation in Virginia, away from the
victim and her family.

       We reverse the trial court’s order and reinstate the defendant’s probation.




                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




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