        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 16, 2014 Session

          STATE OF TENNESSEE v. COURTNEY EUGENE DUKES

                Appeal from the Criminal Court for Hamilton County
                         No. 282883   Don W. Poole, Judge


             No. E2014-00154-CCA-R3-CD-FILED-NOVEMBER 7, 2014


The Defendant, Courtney Eugene Dukes, appeals the Hamilton County Criminal Court’s
revoking his probation and ordering his effective four-year sentence into execution. The
Defendant contends that the trial court abused its discretion by revoking his probation. We
affirm the judgment of the trial court.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and R OGER A. P AGE, JJ., joined.

Jay A. Perry, Chattanooga, Tennessee, for the appellant, Courtney Eugene Dukes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
William H. Cox III, District Attorney General; and Cameron B. Williams, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        On May 22, 2012, the Defendant pleaded guilty to domestic aggravated assault,
reckless endangerment, theft of property, and aggravated assault. At the guilty plea hearing,
the State summarized the facts underlying the Defendant’s convictions. According to the
State, police officers responded to a “disorder” at 1916 Heaton Street on December 27, 2011.
The police were informed by the victims, Paige Fortson and Jessica Davis, that the Defendant
came to the residence, argued with the victims about custody issues, and took Ms. Fortson’s
debit card. Ms. Fortson is the mother of the Defendant’s child.

       The Defendant then left and returned with a “long gun.” The Defendant pointed the
gun at the victims and then went outside where he shot the gun into the air. The Defendant
also told Ms. Fortson that he would “come back and shoot up her vehicle.” Both victims
expressed fear for their safety. After the Defendant was arrested, the police found Ms.
Fortson’s debit card and .22 caliber cartridges in his pocket. The gun was also recovered.

        Upon pleading guilty, the Defendant was sentenced by agreement to serve eleven
months, twenty-nine days in confinement with the balance of his four-year sentence on
intensive probation. The Defendant also agreed to complete a twenty-six-week anger
management program and to avoid contact with the victims. The trial judge asked the
Defendant whether avoiding contact with the victims would be a problem, and he responded
that it would not. The judge remarked that the Defendant should go to court to work out
visitation with his child and that he should stay away from the victims.

        On July 15, 2013, the trial court issued a capias for the Defendant’s arrest based upon
a probation violation report filed by Stephanie Anders alleging the following rule violations:
new charges; failure to provide proof of employment for November 2012 to July 2013;
failure to report in May, June, and July 2013; failure to pay probation and supervision fees;
failure to complete anger management; and engaging in assaultive, abusive, threatening, or
intimidating behavior. Two days later, the Defendant was arrested.

       At the probation revocation hearing, Probation Officer Nicole Anderson testified that
the Defendant had initially been assigned to Jonathan Howard and later to Ms. Anders before
being transferred to her supervision. Ms. Anderson had never seen the Defendant.

        Ms. Anderson testified that Ms. Anders filed the probation violation report on July
11, 2013. Ms. Anderson agreed that the assaultive, abusive, threatening, or intimidating
behavior violation arose out of April 2013 charges for vandalism and theft and June 2013
charges for burglary, domestic assault, and vandalism.

      Ms. Anderson testified that an addendum to the report was filed on July 12 alleging
the Defendant failed to report an arrest and failed to avoid contact with Ms. Fortson. Ms.
Anderson agreed the failure-to-avoid-contact violation also arose out of the new charges.

       On cross-examination, Ms. Anderson testified that the Defendant had been in custody
since July 10, 2013, which was before his probation supervision had been transferred to her.
The Defendant was “stepped down” from intensive probation on February 9 because he had
completed eight months of intensive probation and been mostly compliant throughout that
time period. Ms. Anderson agreed a supervisor would determine whether a defendant should
be placed on regular probation.




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       Ms. Anderson testified that she did not see anything in the Defendant’s file to indicate
he owned or started a business. The Defendant had not provided proof of a business or a job
search since November 2012. Ms. Anderson agreed the Defendant was placed on regular
probation even though he did not have a job. Ms. Anderson had never met Ms. Fortson.

       The State offered into evidence a recording of 9-1-1 calls allegedly made by Ms.
Fortson. Defense counsel objected to its admission on the grounds that it violated the
Defendant’s constitutional confrontation rights and contained inadmissible hearsay. Counsel
argued that the Defendant denied the incidents described in the recording took place and that
without Ms. Fortson’s presence at the hearing, the statements in the recording could not be
determined to be true. Ms. Fortson was not present at the hearing even though she had been
served with a subpoena. The trial judge responded that he needed to listen to the recording
to determine whether the statements were made for the purpose of a prosecution or a
continuing emergency and whether the recording violated the Defendant’s rights.

        The recording contained three 9-1-1 calls made on June 20, 2013. During the first
call, Ms. Fortson identified her address and reported her “baby daddy bust[ed]” a window
out of her house. Ms. Fortson did not identify herself during the call, but the record reflects
that the parties agreed the call was from her. In response to questions from the operator, Ms.
Fortson identified her baby’s father as Courtney Dukes, stated he was “busting” the glass as
she spoke, and stated she did not know whether he had any weapons. The operator asked
Ms. Fortson for the Defendant’s race, but before she could answer, the call was disconnected.

       The other two calls were placed from the same location. During the second call, Ms.
Fortson’s neighbor, Erika Hughley, reported “she” needed the police and described the
incident. When the operator asked where “she” was, another woman sounding like the
person from the first call responded with details about the incident, but the call was again
disconnected. During the third call, Ms. Fortson provided additional details to the operator
regarding the incident before being told the police were on their way.

       The trial court found that the primary purpose of the statements in the recording was
to respond to a continuing emergency by way of a call for help. The court also found that the
statements qualified as excited utterances. The recording was received as an exhibit.

        The trial court then found by a preponderance of the evidence that the Defendant had
violated his probation conditions by (1) failing to report in May, June, and July 2013; (2)
failing to continue anger management; (3) failing to submit proof of a job search; (4) failing
to pay costs and fees; and (5) violating the no-contact order. The court revoked the
Defendant’s probation and ordered his four-year sentence into execution with credit for time
served. This appeal followed.

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       The Defendant contends that the trial court abused its discretion by revoking his
probation. The Defendant argues that the trial court erred by finding that he violated the no-
contact order because the recording contained inadmissible hearsay and violated his
confrontation rights. The State responds that the trial court properly revoked the Defendant’s
probation. We agree with the State.

       Our supreme court has concluded that a trial court’s decision to revoke a defendant’s
probation “will not be disturbed on appeal unless . . . there has been an abuse of discretion.”
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d
145, 146 (Tenn. Crim. App. 1981)). An abuse of discretion has been established when the
“record contains no substantial evidence to support the conclusion of the trial judge that a
violation of the conditions of probation has occurred.” State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980); see State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978). When a trial court finds by a preponderance of
the evidence that a defendant has violated the conditions of probation, the court “shall have
the right . . . to revoke the probation.” T.C.A. § 40-35-311(e)(1) (2014). After revoking a
defendant’s probation, the trial court may return a defendant to probation with modified
conditions as necessary, extend the period of probation by no more than two years, order
confinement, or order the defendant’s sentence into execution as originally entered. T.C.A.
§§ 40-35-308(a), (c), -310 (2014). “In probation revocation hearings, the credibility of
witnesses is for the determination of the trial judge.” Carver v. State, 570 S.W.2d 872, 875
(Tenn. Crim. App. 1978) (citing Bledsoe v. State, 378 S.W.2d 811, 814 (Tenn. 1965)).

       Although the Defendant argues that the trial court should not have relied on the
recording in determining whether he violated the no-contact order, he does not challenge the
court’s finding that he (1) failed to report in May, June, and July 2013; (2) failed to continue
anger management; (3) failed to submit proof of a job search; and (4) failed to pay costs and
fees. Each of these violations provided a basis for revoking the Defendant’s probation. As
a result, we conclude that the trial court did not abuse its discretion by revoking the
Defendant’s probation and ordering his sentence into execution and that any error in relying
on the recording was harmless. See T.R.A.P. 36(b).


        We note that the Defendant erroneously argues in his brief that had the trial court not
considered the recording, he might have been eligible for community corrections for his
“technical” probation violations. Tennessee Code Annotated section 40-36-106 (2014),
states community corrections is unavailable for an offender who has committed a violent
offense. Because the Defendant was on probation for domestic aggravated assault, reckless
endangerment, and aggravated assault, all violent offenses, he was ineligible for community
corrections.


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        Based on the foregoing and the record as a whole, we affirm the judgment of the
trial court.




                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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