                                                                                       04/09/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs March 28, 2018 at Knoxville

                 STATE OF TENNESSEE v. SHANE T. USREY

                 Appeal from the Criminal Court for White County
               No. CR6493, CR7510, CR6120 Gary McKenzie, Judge
                     ___________________________________

                           No. M2017-01563-CCA-R3-CD
                       ___________________________________


Shane T. Usrey, the Defendant, pled guilty to theft of property over the value of $500 in
case numbers CR6120, CR6493, and CR7510. In 2017, the Defendant was arrested for
violating the terms of his probation by committing domestic assault and aggravated
assault. After a hearing, the trial court fully revoked the Defendant’s probation in all
three cases and imposed the original sentences. On appeal, the Defendant argues that: (1)
the trial court should not have placed any probative value on the victim’s testimony
because she was intoxicated at the time of the offenses; and (2) the evidence was
insufficient for the trial court to have found that the Defendant violated his probation.
After a thorough review of the facts and applicable case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and J. ROSS DYER, JJ., joined.

J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Shane T. Usrey.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          I. Factual and Procedural History

     The Defendant pled guilty to theft of property over the value of $500 in case
number CR6120 on June 27, 2013. The Defendant received a sentence of one year
suspended to supervised probation to be served consecutively to a prior violation of
probation sentence. In case number CR6493, the Defendant pled guilty to theft of
property over the value of $500 on January 9, 2014. His two-year sentence was
suspended to supervised probation to be served consecutively to case numbers CR5938
and CR6120. In case number CR7510, the Defendant pled guilty on November 6, 2015,
to theft of property over the value of $500 and received a sentence of three years. The
trial court ordered the Defendant to serve three months in confinement and the remaining
two years and nine months of the sentence was suspended to supervised probation to be
served consecutively to a prior “TDOC” sentence.1

       On March 2, 2017, Deputy James Reels of the White County Sheriff’s Office
(“WCSO”) filed an incident report alleging that the Defendant committed domestic
assault against his wife by slapping her and burning her with a lit cigarette. On March
20, Melanie Cowen filed a probation violation warrant which alleged that the Defendant
violated the terms of his probation by failing to obey state laws and by engaging in
assaultive behavior. On March 30, 2017, Sergeant Allen Hale arrested the Defendant on
a violation of probation warrant. The probation violation warrant was later amended to
include the allegation that, on March 10, 2017, the Defendant committed two counts of
domestic assault and one count of aggravated assault.

       At the probation violation hearing, Ms. Cowen testified that she worked at the
Tennessee Board of Probation and Parole (“the Board”) as the Defendant’s probation
officer. Ms. Cowen stated that the Defendant allegedly committed two counts of
domestic assault on March 2, 2017. Ms. Cowen amended the affidavit to the probation
violation warrant to cite the Defendant for committing two counts of domestic assault and
one count of aggravated assault on March 10, 2017. She stated that she filed an
“Affidavit Violation of Probation” on March 20, 2017, which alleged that the Defendant
had committed new criminal offenses. On cross-examination, Ms. Cowen testified that
the Defendant’s probation began on November 6, 2015.2 She noted that this was the first
probation violation that had been filed against the Defendant.

       Cara Usrey testified that she was the Defendant’s wife and that, on March 2, 2017,
she and the Defendant were at their residence, along with several of her family members.
She and the Defendant had been drinking, and they began arguing. The Defendant
slapped her. The Defendant also had a lit cigarette in his hand which burned her neck.
After the assault, Mrs. Usrey’s niece called the police, and the Defendant left the
residence. The police responded and spoke with Mrs. Usrey and her family members.

        1
         It is unclear what case this prior “TDOC” sentence was from.
        2
         It appears that the Defendant’s probation began on this date and that he was serving a sentence
in the Department of Correction prior to his probation.
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Shortly after the police left the residence, the Defendant returned. Mrs. Usrey shut the
door to block the Defendant from entering, but the Defendant “kicked the bottom of the
door in.” The Defendant pushed Mrs. Usrey, and Mrs. Usrey’s niece stepped in between
them. The Defendant left the residence before the police responded for a second time.
On March 10, 2017, the Defendant, Mrs. Usrey, and her three-year-old son went to the
Highway 84 Market. While she was in the store, a store employee informed Mrs. Usrey
that the Defendant had pushed Mrs. Usrey’s son out the door. Mrs. Usrey stated that she
did not see the Defendant’s actions and that her son was not misbehaving. Mrs. Usrey,
her son, and the Defendant returned to their residence, where the Defendant grabbed Mrs.
Usrey’s head, shook her, and “threw her around.” Mrs. Usrey’s neighbors called the
police, but the Defendant left before they arrived. The police later located the Defendant.

       On cross-examination, Mrs. Usrey testified that, while she and the Defendant had
argued previously, neither had been arrested. She stated that, on March 2, she had been
drinking prior to the altercation with the Defendant. She explained that she was
“probably drunk” and that this could have interfered with her memory of the event. She
also stated that, on March 10, both she and the Defendant had been drinking, but she was
not drunk on that occasion.

        James Reels testified that, at the time of these events, he worked as a deputy for
the WCSO. On March 2, 2017, Deputy Reels responded to the Defendant’s residence.
He spoke with Mrs. Usrey and two other witnesses who reported that Mrs. Usrey had
been slapped and burned by the Defendant. He observed redness on her chest and face
and a mark that was consistent with a burn from a cigarette. Deputy Reels left but later
returned to the residence. Deputy Reels and Officers Nick Dunn and Tony Copeland
from the Sparta Police Department searched the area surrounding the residence for the
Defendant, but they were unable to locate him. On cross-examination, Deputy Reels
testified that he photographed Mrs. Usrey’s injuries.

       Sergeant Lenny Wheeler testified that, on March 10, 2017, he responded to the
Defendant’s and Mrs. Usrey’s residence. When he arrived, Mrs. Usrey was standing
outside of the residence, and her face and neck were red. She was crying and “very
upset.” She informed Sergeant Wheeler that the Defendant ran out the back door of the
residence. Sergeant Wheeler located the Defendant and observed that he smelled of
alcohol and was very upset. Sergeant Wheeler noted that there was a surveillance video
that allegedly depicted the Defendant pushing Mrs. Usrey’s son at the Highway 84
Market. However, he had not reviewed the video recording. He later learned that the
Defendant was not allowed to contact Mrs. Usrey as a condition of his bond relating to
the March 2 incidents.



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       On cross-examination, Sergeant Wheeler testified that Mrs. Usrey did not appear
to be impaired when he spoke with her at the residence about the Defendant’s assault.
Mrs. Usrey informed Sergeant Wheeler that the Defendant grabbed her, hit her, and threw
her on the ground. Sergeant Wheeler testified that her injuries on her neck and chin were
consistent with Mrs. Usrey’s account of the incident.

        Connie Campbell testified on behalf of the Defendant that the Defendant had
struggled with breathing problems since he was sixteen years old. She explained that the
Defendant received breathing treatments and used breathing machines and inhalers. She
stated that the Defendant had previously been diagnosed with asthma and COPD.

        The trial court found that the Defendant violated his probation based on his
conduct on March 2, 2017, and March 10, 2017, which led to his arrest for four counts of
domestic assault and one count of aggravated assault. Regarding Mrs. Usrey’s testimony,
the trial court stated the following:

              She does admit to drinking that night, but on cross-exam[ination], all
      she says is maybe she got some things out of order. But there was no
      indication in cross[-examination], or anything[] . . . that what she had said
      was not true, or that the event didn’t occur. And what she had said
      occurred on that incident is consistent with what [Deputy] Reels found
      when he interviewed other witnesses who saw the event, as well as looking
      at the red marks on [Mrs. Usrey’s] face, and that, putting all of that together
      gave him the probable cause to arrest.

        The trial court noted that Sergeant Wheeler’s testimony that he observed red
marks on Mrs. Usrey’s face and neck also corroborated her account of the March 10,
2017 incident. The trial court found that the Defendant had violated the terms of his
probation by a preponderance of the evidence. The trial court fully revoked the
Defendant’s supervised probation in case numbers CR6120, CR6493, and CR7510. The
trial court ordered the Defendant to serve the original sentence imposed in these cases,
with credit for time served.

       The Defendant now timely appeals the trial court’s decision to fully revoke his
probation.

                                       II. Analysis

       On appeal, the Defendant argues that: (1) the trial court should not have placed
any probative value on the victim’s testimony because she was intoxicated at the time of
the offenses; and (2) the evidence was insufficient for the trial court to have found that
                                           -4-
the Defendant violated his probation. The State asserts that, as the trier of fact, it was
within the purview of the trial court to credit Mrs. Usrey’s testimony. The State contends
that the trial court properly exercised its discretion to find that the Defendant violated his
probation and to fully revoke the Defendant’s probation. We agree with the State.

       Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of his or her probation, a trial court may revoke probation and order the
imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2017); State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling
on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse
of discretion, a defendant must show that there is “no substantial evidence” in the record
to support the trial court’s determination that a violation of probation has occurred. Id.
Proof of a violation does not need to be established beyond a reasonable doubt. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if a trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e) (2017).

       Here, the trial court credited Mrs. Usrey’s testimony that the Defendant assaulted
her twice on March 2, 2017, and assaulted both her and her son on March 10, 2017. “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). Deputy Reels
and Sergeant Wheeler corroborated Mrs. Usrey’s account with their testimony that they
observed injuries on her person. We conclude that the testimony presented at the
evidentiary hearing supported the trial court’s finding by a preponderance of the evidence
that the Defendant had violated the terms of his probation by failing to obey state laws
and by engaging in assaultive behavior.

       Once a trial court has determined that a violation of probation has occurred, the
court has the discretionary authority to order the defendant to: (1) incarceration; (2) have
the defendant serve the original sentence; (3) modify the conditions of the defendant’s
probation; or (4) extend the defendant’s probation period for up to two additional years.
See Tenn. Code Ann. §§ 40-35-308(a), -308(c), -310, -311(e) (2017); State v. Hunter, 1
S.W.3d 643, 648 (Tenn. 1999). The determination of the proper consequences of the
probation violation embodies a separate exercise of discretion. State v. Reams, 265
S.W.3d 423, 430 (Tenn. Crim. App. 2007).

       In the case sub judice, the Defendant had previously pled guilty to multiple
charges of theft and was currently accused of committing several counts of domestic
assault and aggravated assault against his family members. Because the trial court acted
                                            -5-
under its discretionary authority, as authorized by statute, to order the Defendant to serve
his original sentence in confinement, the trial court did not abuse its discretion. The
Defendant is not entitled to relief on this ground.

                                     III. Conclusion

      Based on the aforementioned reasons, we affirm the trial court’s decision to fully
revoke the Defendant’s probation.

                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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