            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                        FILED
                                                                 February 15, 2000
                            JANUARY 2000 SESSION
                                                                 Cecil Crowson, Jr.
                                                                Appellate Court Clerk


STATE OF TENNESSEE,            *    C.C.A. # E1999-00409-CCA-R3-CD

             Appellee,         *    KNOX COUNTY
VS.                            *    Hon. Richard R. Baumgartner, Judge

ANDRE L. LEE,                  *    (Revocation of Probation)

             Appellant.        *




For Appellant:                      For Appellee:
Mark E. Stephens                    Paul G. Summers
District Public Defender            Attorney General and Reporter

Paula R. Voss                       Peter M. Coughlan
1209 Euclid Avenue                  Assistant Attorney General
Knoxville, TN 37921                 Criminal Justice Division
(on appeal)                         425 Fifth Avenue North
                                    Nashville, TN 37243-0493
Randall Jay Kilby
Assistant Public Defender           Randall E. Nichols
1209 Euclid Avenue                  District Attorney General
Knoxville, TN 37921
(at trial)                          Marsha Selecman
                                    and
                                    Anne S. Crisler
                                    Asst. District Attorneys General
                                    City-County Building
                                    Knoxville, TN 37902




OPINION FILED:__________________________


AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The defendant, Andre L. Lee, appeals the trial court's decision to

revoke probation and to require that the remainder of his sentence be served in the
Department of Correction. The single issue presented for review is whether the trial

court abused its discretion by revoking his probation.



              We find no error and affirm the judgment of the trial court.



              On January 31, 1999, the defendant entered a guilty plea to arson.
Tenn. Code Ann. § 39-14-301. The trial court originally imposed a sentence of four

years, one of which was to be served in the Knox County Jail and the balance of

which was to be served on intensive probation. After service of some jail time, the
defendant filed a motion to reconsider and, on April 21, 1997, the trial court placed

the defendant on probation. The probation was conditioned upon the defendant's

compliance with the law and exhibition of conduct consistent with good citizenship.

Seven months later, the state filed a warrant for the violation of probation as follows:

(1) failure to report to the probation officer; (2) failure to maintain full employment;
(3) failure to inform the probation officer of changes in employment; (4) curfew

violations; (5) failure to pay court costs; and (6) failure to pay fees. On December 4,

1998, the trial court dismissed the petition and returned the defendant to intensive
probation. A little over two weeks later, on December 21, 1999, the state filed

another warrant alleging that the defendant violated the law by committing an

aggravated assault.


              At the revocation hearing, the defendant's ex-girlfriend, Rhonda Lee

Burkhart, testified that on December 19, 1998, she made bail for the defendant, who

had been jailed for failure to pay child support. She testified that after his release,
an argument ensued and the defendant began to choke her while she was driving

her automobile. She recalled that during the altercation, she stopped and fled to the

trunk of her car to find "anything to get him off me." Ms. Burkhart contended that the
defendant then grabbed her, punched her, and choked her. She stated that when


                                            2
the defendant threatened to kill her, she struck him once or twice with a gas can she

had found in the trunk. Ms. Burkhart testified that when the struggle ended, she

threatened to call the police and the defendant again grabbed her. She was able to
get away, however, and escaped to a nearby K-Mart, where she called 911. Ms.

Burkhart claimed to have bruises on her neck, back, and ribs and "a busted lip."



              Amanda Huber, an employee at the K-Mart on Kingston Pike in

Knoxville, also testified at the probation revocation hearing. She stated that on the

night in question, she saw the defendant grab Ms. Burkhart as she tried to run away
from him. She also overheard the defendant threaten to kill Ms. Burkhart as she

phoned the police and saw him force her head against a store window. Ms. Huber

recalled that the defendant left the store when he realized there was a witness to the
incident.



              The defendant testified that when Ms. Burkhart arrived at the jail to

arrange his release, she had been drinking "tall cans of beer." He claimed that she

initiated the altercation by "poking me in the side of my head" and that he responded
by pushing her hand away. The defendant contended that Ms. Burkhart then struck

him and he merely defended himself. He explained that when she went to the trunk

of the car, he believed she was looking for a weapon. The defendant insisted that
he merely defended himself when Ms. Burkhart grabbed a gasoline container and

tried to douse him with the contents.



              The trial court, while acknowledging that the evidence was disputed,

accredited the testimony of the eyewitness who had observed the defendant grab

Ms. Burkhart and "bang her head against the glass . . . ." The trial court calculated

216 days of jail credit for the defendant as of the date of revocation.


              When a probation revocation is challenged, this court has a limited

scope of review. If the trial judge finds by a preponderance of the evidence "that the
defendant has violated the conditions of probation," his probation may be revoked.


                                           3
Tenn. Code Ann. § 40-35-311(d). The decision to revoke a suspended sentence

rests within the discretion of the trial court. The Sentencing Commission Comments

to § 40-35-310 provide that "[u]pon revocation, the original sentence imposed can
be placed into effect." The determination by the trial court, if conscientiously made,

is entitled to an affirmance. The record must merely demonstrate that there is

substantial evidence to support its conclusions. State v. Delp, 614 S.W.2d 395, 398

(Tenn. Crim. App. 1980); see also State v. Williamson, 619 S.W.2d 145, 147 (Tenn.

1981). Upon appeal, the findings of the trial court are entitled to the weight of a jury

verdict. The judgment of revocation will be upheld unless there is no substantial
evidence to support those findings. State v. Wall, 909 S.W.2d 8 (Tenn. Crim. App.

1994); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).



              As a condition of probation, the defendant was required to comply with

the laws of the state of Tennessee. Here, the state established that the defendant

had assaulted Ms. Burkhart. The testimony of the victim was supported by an

independent witness. As was his prerogative, the trial judge, who saw and heard

the witnesses firsthand, accredited the proof offered by the state. Under those
circumstances, it cannot be said that the trial court abused its discretion.




              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:


_____________________________
Joseph M. Tipton, Judge


_____________________________
James Curwood Witt, Jr., Judge




                                           4
