        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 19, 2012 Session

          STATE OF TENNESSEE v. MATTHEW BRIAN GRAHAM

                Appeal from the Circuit Court for Rutherford County
                    No. F-65687, F-66167 Don R. Ash, Judge




                No. M2011-01878-CCA-R3-CD - Filed October 10, 2012


The Defendant, Matthew Brian Graham, appeals the Rutherford County Circuit Court’s order
revoking his probation for one count of attempted child abuse and three counts of obtaining
a controlled substance by fraud and ordering the remainder of his effective eight-year
sentence into execution. We affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgement of the Circuit Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.

Luke A. Evans (at hearing and on appeal) and James T. Pinson (on appeal), Murfreesboro,
Tennessee, for the appellant, Matthew Brian Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William Whitesell, District Attorney General; and Laural A. Hemenway, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        According to the revocation warrants, the Defendant’s convictions were imposed on
April 18, 2011. On June 22, 2011, a probation violation warrant was filed alleging that the
Defendant violated four rules of probation by being arrested on charges of public intoxication
and three counts of assault and by failing to make payments on his probation fees, court
costs, or fines.
        At the revocation hearing, Emily Williams testified that she supervised the
Defendant’s probation officer before the officer left that employment. Ms. Williams said she
approved the warrant when it was issued. She said the Rutherford County “booking sheet”
for June 11, 2011, reflected the Defendant’s arrest for public intoxication and three counts
of assault. She said that she met with the Defendant for his initial intake and that he was
advised of the requirements and length of his probation. She said the Defendant’s
convictions in the present case resulted in a probation violation for an earlier offense. On
cross-examination, she agreed that the probation rules the Defendant was accused of
violating pertained to failing to obey the law, using alcohol to excess, not paying fees and
costs, and engaging in assaultive or abusive behavior. She acknowledged that the Defendant
had been accepted into a drug and alcohol treatment center for a ninety-day program and that
there was space available for him in the program.

        Sierra Booth testified that she was an acquaintance of the Defendant and that he knew
friends of hers who had been at M.T. Bottle on the evening he hit her. She obtained an
assault warrant against him after he hit her. She said that she was not involved in any
arguments or fights with the Defendant. She said, however, that “a whole bunch of fights
broke out with [the Defendant] and like four other people.” She said that a bouncer “sat him
down” outside and tried to calm him. She said that after the Defendant “settled down[,] . .
. he got back up and started walking towards Thomas [Hartman],” whom she identified as
M.T. Bottle’s bouncer. She said that the Defendant turned toward her and hit her with his
fist. She said the force of the blow knocked out a contact lens. She assumed the Defendant
was drinking because her friends who were with him were drinking. She saw the Defendant
grab Mr. Hartman by his neck and scratch his face. She said the Defendant “went after a guy
named Ben” but did not touch him. She said the Defendant and “Chris went at each other”
and that the Defendant and “Adam Brown went after each other.”

       On cross-examination, Ms. Booth testified that she did not drink and had not been
drinking that night. She said that she saw Chris hit the Defendant. She said that “Thomas
choked him out” by placing him in a headlock after the Defendant grabbed Mr. Hartman’s
neck. She said the Defendant “was fighting everybody in the bar” and that the fight started
inside. She said that she was inside by the pool table when she became aware of the fight but
that she did not know who started it. She said that when the Defendant struck her, he had
been walking toward Mr. Hartman but that when he was about one-half the way there, he
came toward her and hit her. She did not think the Defendant hit her accidentally because
he stepped toward her to hit her. She said that the Defendant probably was “a little woozy”
from the fight but that he appeared to walk straight. She said that the fights were one-on-one
outside and that the Defendant started all the fights outside. She estimated that twenty
minutes passed between the time the Defendant went outside and the arrival of the police.



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She said that Mr. Hartman did not go outside until after the Defendant and Chris were
outside.

       On redirect examination, Ms. Booth testified that the Defendant grabbed Mr.
Hartman’s neck, who responded by grabbing the Defendant’s neck, talking to him, and
having him sit on the curb by the bar’s entrance. She said that as Mr. Hartman walked away,
the Defendant stood and started to follow but instead stepped to his left and hit her. On
recross-examination, she said there were six or seven people in the parking lot.

       Rutherford County Sheriff’s Officer Stevens testified that he was dispatched to the
M.T. Bottle bar and responded with five other officers. When he arrived, the Defendant
walked toward him with blood on his face. He said the Defendant “seemed a little dazed,”
had a strong odor of alcohol on his breath, had dilated pupils, and had bloodshot eyes. He
said that Thomas also walked toward him. He said that after patrons of the bar came outside
and made statements to him, he asked the Defendant to sit in the back of his patrol car for
safety. He said it was obvious that the other patrons were upset with the Defendant. He said
he talked to Mr. Hartman, Ms. Booth, Christopher Chaffin, Jessica Curtis, and Laquinta
Shoenfield. He identified Ms. Shoenfield as an M.T. Bottle employee. He said he arrested
the Defendant for public intoxication.

       On cross-examination, Officer Stevens testified that he did not charge the Defendant
with assault that night. He explained that he did not witness the alleged misdemeanor
assaults and that the complainants swore out the warrants themselves. He acknowledged that
he did not do any blood alcohol testing on the Defendant. He said that Ms. Booth’s
testimony that there were only five or six people in the parking lot was inaccurate and that
there were about twenty people. He said that based upon the Defendant’s injuries, he first
thought the Defendant had been “jumped.” He said he did not see anything in disarray inside
the bar. He said the strong odor of alcohol came from the Defendant’s breath as the
Defendant spoke to him. He acknowledged that it was “[v]ery possible” a person would have
bloodshot eyes from being hit around the eyes and said the Defendant appeared to have been
hit around the eyes.

        The Defendant did not offer any proof. Before making its ruling, the trial court noted
that the Defendant’s plea agreement included language that if there was a probation violation,
the Defendant agreed to serve his sentence. Defense counsel acknowledged this term of the
plea agreement but argued that the court was not bound by the agreement. The trial judge
said, “I agree. I think you’re right.” The court ruled:

              As [defense counsel] said I’ve got to find by a preponderance of
              the evidence that a violation has occurred. I’m going to find that

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              in fact that has been met certainly in regard to the assaultive
              behavior. And then secondly I think there was sufficient proof
              that he was in a bar. When the thing’s called M.T. Bottle and
              the lady testified that there was drinking going on there. So I
              think there’s sufficient proof of that. So finding all of that I’m
              going to find that he has in fact violated his probation. And then
              I’ve got options there to serve the original sentence, serve the
              entire probationary period again or add some additional time to
              his probation. And based upon his conduct I don’t think he’s a
              good candidate for probation. So I’m going to order you to
              serve your sentence, sir.

This appeal followed.

                                              I

      The Defendant contends that the trial court erred in revoking his probation. The State
counters that the revocation was proper. We agree with the State.

        A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a
trial court revokes a defendant’s probation, its options include ordering confinement,
ordering the sentence into execution as originally entered, returning the defendant to
probation on modified conditions as appropriate, or extending the defendant’s period of
probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310; see State v. Hunter, 1
S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation proceeding
will not be disturbed on appeal unless there has been an abuse of discretion. See State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981).

        The Defendant argues that the State failed to establish by a preponderance of the
evidence that he committed the crime of assault and that he entered an establishment that had
the primary purpose of serving alcohol. We disagree. The evidence demonstrates that the
Defendant hit Ms. Booth with his fist without provocation or justification. Although there
is no proof regarding earlier events inside M.T. Bottle, the proof shows that he initiated
confrontations with other individuals in the parking lot and that he struck, scratched, or
choked them. With respect to the type of business M.T. Bottle was, Ms. Booth and Officer
Stevens referred to it as a “bar.” The name M.T. Bottle suggests this as well. Ms. Booth
testified that the Defendant’s friends were drinking at M.T. Bottle and that she first saw the

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fight inside as she stood by a pool table. The trial court did not err in finding that the
Defendant violated the conditions of his probation.

                                               II

       The Defendant contends that the trial court abused its discretion in ordering him to
serve his sentence for his first probation violation and that the court erred in considering that
his plea agreement included a waiver of an application for a suspended sentence if he
violated his probation. The State contends that the trial court did not abuse its discretion in
ordering the Defendant to serve his original sentence and that the Defendant has improperly
challenged the voluntariness of his plea. We agree with the State that the trial court did not
abuse its discretion, and we disagree with the Defendant that the trial court considered any
purported waiver in reaching its determination.

        The record reflects that the trial court noted that the guilty plea contained a waiver of
an application for a suspended sentence if the Defendant violated his probation. The record
reflects, however, that the trial court agreed with defense counsel that it was not limited by
that waiver and should follow the provisions of the sentencing act in determining the proper
consequence of the Defendant’s violation.

        Regarding the trial court’s decision to order the Defendant to serve his sentence, we
note that the evidence showed that the Defendant violated the terms of a previous sentence
of probation by committing the offenses that led to the convictions in this case. We also note
that the Defendant violated his probation in this case less than two months after beginning
his eight-year probation sentence. The evidence demonstrates that he committed multiple
criminal offenses on the evening in question. There was no proof that the Defendant acted
in self-defense or that he would be successful if the court granted him a further reprieve. The
trial court did not err in ordering him to serve his sentence.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                            ___________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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