        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2012

              STATE OF TENNESSEE v. ALEXANDER FULLER

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2010-D-2973     Steve R. Dozier, Judge


                 No. M2012-00734-CCA-R3-CD - Filed March 5, 2013


The appellant, Alexander Fuller, appeals the Davidson County Criminal Court’s revoking his
probation for theft of property valued one thousand dollars or more but less than ten thousand
dollars and ordering that he serve his eight-year sentence in confinement. Based upon the
record and the parties’ briefs, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.

Jeffrey A. DeVasher (on appeal), Rose Mary Drake (on appeal), and Kevin Griffith (at trial),
Nashville, Tennessee, for the appellant, Alexander Fuller.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Wesley King, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        On February 24, 2011, the appellant pled guilty as charged to theft of property valued
one thousand dollars or more but less than ten thousand dollars, a Class D felony. Pursuant
to the plea agreement, he was sentenced as a Range III, persistent offender to eight years to
be served on supervised probation. At the guilty plea hearing, the State gave the following
factual account of the crime:

              [O]n or around February 12th, 2010, Nashville Electric Service
              had several items stolen, specifically five steel arms stolen from
              a construction site at Brick Church Pike and Briley Parkway.
              Four of the large steel arms were taken from the site and
              subsequently taken to Metal Management at 1840 Linder
              Industrial Drive and cashed in for money. That was done by the
              defendant, Mr. Fuller, on February 15, 2010. Pictures of the
              defendant as well as the vehicle that he used and his driver’s
              license were obtained from Metal Management that assisted in
              identifying the defendant.

On January 11, 2012, the appellant’s probation supervisor filed a probation violation
affidavit, claiming that the appellant violated his probation by being arrested on December
19, 2011, for violating the sex offender registration law and by moving to a different
residence without informing his supervisor. The trial court issued a probation violation
warrant, and the appellant was arrested.

       At the appellant’s probation revocation hearing, Aaron Blanchard of the Tennessee
Board of Probation and Parole’s Sex Offender Unit testified that he began supervising the
appellant on December 14 or 15, 2011. He filed the probation violation affidavit on January
11, 2012, because the appellant was arrested for violating the sex offender registration law
and moved to a different residence without giving the new address to Blanchard. The
appellant’s previous probation supervisor, Twanna Scales-Richardson, also had filed a
probation violation affidavit for the appellant’s violating the sex offender registration law.
Therefore, the violation of the sex offender registration law at issue in this case was the
appellant’s second violation.

       Blanchard testified that in 1988, the appellant was convicted of the rape and sexual
battery of his fifteen-year-old daughter. Given that the victim was the appellant’s child,
Tennessee law prohibited him, a registered sex offender, from residing with any children.
Blanchard received information that the appellant was living with the appellant’s children.
On December 19, 2011, Blanchard went to the appellant’s registered address, 1107 North
Second Street in Nashville. When Blanchard arrived at the home, he knocked on the door
for several minutes. A man finally answered the door and told Blanchard that the appellant
had moved three or four months ago and was living in a home down the street with a woman
and her children. Blanchard went to the second home at 1023 North Second Street and saw
the appellant’s ten-year-old son run into the house. The appellant and his girlfriend were
standing in the doorway. The appellant came outside and told Blanchard that he had been
staying there one or two nights per week and that he had clothes there. Blanchard went into
the house and found the appellant’s clothes in numerous places. He also saw a child two or
three months old in the living room. Blanchard learned that the appellant and his girlfriend

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had had a child in September 2011.

       Blanchard testified that he found infant and preteen toys, including a bicycle, in the
home, and Blanchard found a pile of the appellant’s dirty laundry. Blanchard stated that the
appellant said “he wouldn’t keep staying there, that he would go back up the street.” The
appellant did not tell Blanchard the amount of time he had been staying at the home. A
police officer who had gone to the house with Blanchard searched the appellant’s person and
found a state-issued identification card for the appellant’s ten-year-old son. The address on
the card was 1107 North Second Street. Given that the appellant was not allowed to reside
with children, his staying in the home at 1023 North Second Street was a violation of the sex
offender registration law and, therefore, a violation of the appellant’s probation. The
appellant also violated his probation by failing to inform Blanchard that he had moved to
another location.

        On cross-examination, Blanchard testified that the appellant claimed he still lived at
1107 North Second Street and that he spent one or two nights per week at 1023 North Second
Street. Blanchard said that spending one or two nights per week at the home would be four
to eight nights per month, establishing a secondary residence for the appellant. The appellant
told Blanchard that he had some “church clothes” hanging in a closet at 1023 North Second
Street, and Blanchard found the clothing. Blanchard did not look for the appellant’s mail at
the residence or check to see if the utilities were registered in the appellant’s name.
Blanchard did not record the name of the man he spoke with at 1107 North Second Street.

        After taking the matter under advisement, the trial court filed a written order in which
the court revoked the appellant’s probation and ordered that he serve his sentence in
confinement. Specifically, the trial court stated, “In this case, the defendant resided with
minor children contrary to the statute and at a different location [than] he had informed his
supervising officer. . . . Based upon the proof, the Court finds the defendant to be in violation
of the terms of his probation and his sentence is placed into effect.”

                                         II. Analysis

       The appellant contends that the trial court erred by revoking his probation because
Blanchard’s testimony was insufficient to establish by a preponderance of the evidence that
he moved his residence or that he established a “secondary residence.” He also argues that
even if the State established a probation violation, the trial court erred by placing his entire
sentence into effect. The State contends that the trial court did not abuse its discretion. We
agree with the State.

       Upon finding by a preponderance of the evidence that the appellant has violated the

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terms of his probation, a trial court is authorized to order an appellant to serve the balance
of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e).
Furthermore, 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. State v. Leach, 914 S.W.2d
104, 106 (Tenn. Crim. App. 1995). “A trial court abuses its discretion when it applies
incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly
erroneous assessment of the proof, or applies reasoning that causes an injustice to the
complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). Upon revoking
probation, a trial court has the authority to order the appellant to serve the original sentence
in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991).

      Tennessee Code Annotated 40-39-203(a)(1), part of the Tennessee Sexual Offender
and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, provides,

              Within forty-eight (48) hours of establishing or changing a
              primary or secondary residence, establishing a physical presence
              at a particular location, becoming employed or practicing a
              vocation or becoming a student in this state, the offender shall
              register or report in person, as required by this part. Likewise,
              within forty-eight (48) hours of release on probation or any
              alternative to incarceration, excluding parole, the offender shall
              register or report in person, as required by this part.

Relevant to this appeal, Tennessee Code Annotated section 40-39-202(18) defines a
“secondary residence” as “a place where the person routinely abides, lodges or resides for
a period of four (4) or more consecutive or nonconsecutive days in any month and that is not
the person’s primary residence, including any out-of-state address.”

        The appellant told Blanchard that he was staying in the second home one or two nights
per week, which equates to four to eight nights per month. The appellant also told Blanchard
that he “wouldn’t keep staying there” and that he “would go back up the street.” Blanchard
found the appellant’s church clothes hanging in a bedroom closet and a pile of the appellant’s
dirty laundry in the home. The evidence showed by a preponderance of the evidence that the
appellant had established, at a minimum, a secondary residence at 1023 North Second Street,
where his minor children were living, and that he failed to notify his probation supervisor.
Therefore, the trial court did not abuse its discretion by revoking his probation.

       Upon revoking probation, the trial court had the authority to order the appellant to
serve his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e);

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State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). This court has repeatedly
cautioned that “an accused, already on probation, is not entitled to a second grant of
probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 Tenn. Crim. App. LEXIS 115, at *4 (Nashville, Feb. 10,
1999); see State v. Timothy A. Johnson, No. M2001 -01362-CCA-R3-CD, 2002 Tenn. Crim.
App. LEXIS 136, at *7 (Nashville, Feb. 11, 2002). Therefore, the trial court did not err by
ordering the appellant to serve his original sentence in confinement.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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