         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 25, 2005

                     STATE OF TENNESSEE v. JULIA MOSLEY

                 Direct Appeal from the Criminal Court for Sullivan County
                     Nos. S45, 891; S46, 586  Phyllis H. Miller, Judge



                      No. E2004-01787-CCA-R3-CD - Filed April 8, 2005


The appellant, Julia Mosely, pled guilty in the Sullivan County Criminal Court to facilitation of
attempted rape of a child and felony failure to appear. Pursuant to the plea agreement, she was
sentenced to six years for the facilitation conviction and one year for the felony failure to appear.
The trial court ordered that the two sentences be served consecutively, with both sentences
suspended and to be served on probation. Thereafter, the trial court revoked the appellant’s
probation and ordered her to serve the balance of her sentences in confinement. On appeal, the
appellant challenges the revocation of her probation. Upon our review of the record and the parties’
briefs, we affirm the judgments of the trial court.

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

NORMA MC GEE OGLE J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

William A. Kennedy, Blountville, Tennessee, for the appellant, Julia Mosley.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Barry Staubus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background


         On April 10, 2003, the appellant pled guilty to facilitation of attempted rape of a child and
felony failure to appear. Pursuant to the plea agreement, she was sentenced to six years for the
facilitation conviction and one year for the failure to appear conviction, with the two sentences to
be served consecutively. Both sentences were suspended and the appellant was placed on probation.
As a condition of her probation, the appellant registered as a sex offender and was prohibited from
having unsupervised contact with children. On June 7, 2004, a probation revocation warrant was
issued against the appellant, alleging that the appellant had unsupervised contact with her three-year-
old granddaughter on June 6, 2004. Counsel was appointed, and a hearing was held on July 15,
2004.

         At the hearing, Robert Henshaw, a manager in the the Department of Probation and Parole,
testified that he was driving home from church on Sunday, June 6, 2004, when he saw the appellant
sitting on her apartment’s front porch with a child. No other adults were present. Mr. Henshaw took
his family home and returned to the apartment. The appellant and the child were still the only two
people present, and the child was playing in the parking lot of the apartment complex. He stated that
when he asked the appellant if she knew who the child was, she denied having any knowledge of
the child. Mr. Henshaw testified that upon further questioning, the appellant directed him to one of
the apartments because “she thought [the child’s mother] was in one of them.” At that apartment,
Mr. Henshaw found one of the appellant’s daughters, who informed him that the child was her niece
and the appellant’s granddaughter. He further asserted that his investigation revealed that the child’s
mother was in jail and that the child had been passed from one family member to another for care-
taking. Mr. Henshaw stated that during his investigation, he was told that the appellant’s son was
the most recent caretaker of the child and that he had left the child with the appellant some time on
Saturday or Sunday morning and could not be contacted. He further testified that the appellant
admitted to him that she had initially lied because she was afraid of going to jail.

        The appellant’s probation officer, Wendy Minton, testified that she had placed the appellant
and the appellant’s daughters on notice that the appellant was to have no unsupervised contact with
children. She also stated that she knew that the appellant was on oxygen twenty-four hours a day
but that the appellant had both a stationary tank and a portable one.

         The appellant testified that when she awoke on Sunday morning, the child was in her
apartment. She stated that she did not know who had left the child, because all of her children had
keys to her apartment. She then stated that the child was left outside her house, and she was
awakened by the child banging on her glass door. The appellant stated that she could not call her
daughter in the apartment below to come get the child because her telephone had been disconnected.
The appellant shouted, attempting to get her daughter’s attention, but she was unsuccessful. She
asserted that she was not physically capable of walking to her daughter’s apartment because her
oxygen tank’s tube was not long enough. Therefore, she sat outside with the child to wait for
someone to come to her apartment. On cross-examination, the appellant admitted that she had a
portable oxygen unit that she used for grocery shopping and doctor’s appointments. The appellant
again stated that she originally lied to Mr. Henshaw and to the court because she was afraid of going
to jail.

       The trial court specifically found that the appellant was one of the least credible people it had
ever observed, noting her conflicting stories about how the child came to be with her. The trial court
noted,

               [I]f your daughter had covered for you . . . you wouldn’t have had to
               admit you were lying that day. You changed your story here, I find
               on how, where the child was, how you first knew it was there. . . .
               The underlying case was rape of one of your grandchildren by one of

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               your sons and you covered for him . . . you knew exactly what he had
               done.

               . . . You knew what you were supposed to do and not supposed to do.
               You just didn’t think that on a Sunday that anybody is going to catch
               you, so you got caught. . . . I find that they’ve proved that you
               violated probation beyond a reasonable doubt even though they don’t
               have to prove it that much. Your probation is revoked. You’re a
               dangerous offender, I find. You’re hard to supervise, you’re not
               creditable, you lie.

The trial court then revoked the appellant’s probation and ordered that she serve her sentences in
confinement.

       On appeal, the appellant contends that she did not willfully violate her probation, that she
was forced into the situation, and that a defense of necessity should have been considered before
revoking her probation.

                                             II. Analysis

        On appeal, the appellant argues that the trial court abused its discretion in revoking her
probation. Initially, we note that, upon finding by a preponderance of the evidence that the appellant
has violated the terms of her probation, a trial court is authorized to order an appellant to serve the
balance of her original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and 40-35-
311(e) (2003); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Such probation revocation rests
in the sound discretion of the trial court and will not be overturned by this court absent an abuse of
that discretion. See State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of
discretion exists when “the record contains no substantial evidence to support the trial court’s
conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App.
1995).

        The appellant argues that while she may have technically violated the conditions of her
probation, she was forced into the situation and did not voluntarily choose to have contact with her
granddaughter. Thus, she should be shielded by a defense of necessity. However, as the trial court
noted, the testimony of the appellant and other witnesses at the evidentiary hearing shows that the
appellant had the ability to use her portable oxygen tank to reach her daughter’s apartment door and
that she chose not to use it on the morning in question. Even if the child had been left at the
apartment unbeknownst to the appellant, the appellant effectively chose to continue that contact.
The record reflects that the appellant’s daughter lived in the apartment just below the appellant’s
apartment. However, the appellant did not notify her daughter of the child’s presence. Whether the
defense of necessity applies to the appellant’s situation is irrelevant, as she would have violated her
probation even if the defense were applicable.

        The appellant also argues that, according to State v. Dye, 715 S.W.2d 36, 41 (Tenn. 1986),
the State must prove that the appellant’s acts were willful in order for them to constitute a violation

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of probation. However, Dye speaks to the situation in which a defendant has violated his probation
by failure to pay restitution or fines. Id. The court in Dye stated that the trial court must determine
the reasons behind the failure to pay. Id. If the failure is not willful and the defendant has made
genuine efforts to pay, the court may choose not to revoke the defendant’s probation. Id. The
instant case does not involve the failure to pay fines but rather a failure to adhere to the probation
conditions imposed upon her by her status as a sex offender. See State v. William A. Marshall, No.
M2001-02954-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 868, at *20 (Nashville, Oct. 14, 2002).

        As noted above, the appellant was physically able to contact her daughter, but she chose not
to do so. Additionally, the trial court specifically found that the appellant’s testimony was not
credible and rejected her assertion that she could not summon her daughter for assistance. As the
appellant’s own testimony shows that she lied both to the probation officer and to the court, there
is sufficient evidence to show that the trial court did not abuse its discretion in finding that she
violated her probation. Accordingly, the trial court was within its power to revoke the appellant’s
probation and order her to serve the balance of her sentence in confinement.

                                          III. Conclusion

       Finding no reversible error, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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