             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                        Assigned on Briefs May 2, 2006

                     STATE OF TENNESSEE v. CHARLES LEE WHITE

                        Direct Appeal from the Circuit Court for Madison County
                                  No. 04-153    Roger A. Page, Judge



                           No. W2005-02280-CCA-R3-CD - Filed August 4, 2006


The defendant, Charles Lee White, pled guilty to one count of aggravated burglary and three counts
of sexual battery. He was sentenced to an effective eight-year sentence, suspended, and placed on
intensive probation. Thereafter, the trial court revoked the defendant’s probation and placed his
sentence into effect. On appeal, the defendant challenges the trial court’s revocation of his
probation. Upon our review of 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 Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Charles Lee White.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Jerry Woodall, District Attorney General; and James Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                          OPINION

                                                     BACKGROUND

        The defendant pled guilty1 to one count of aggravated burglary and three counts of sexual
battery for a total effective sentence of eight years.2 The defendant’s sentence was suspended and


         1
             The record is not entirely clear whether the defendant entered a best interest guilty plea or a regular guilty plea.

         2
           The record includes the defendant’s request for acceptance of a plea of guilty which indicates that he would
also plead guilty to one count of coercion of a witness. Also, the probation order indicates that the defendant was
convicted of coercion of a witness. However, the judgment sheet indicates that this charge was dismissed.
he was placed on probation in late October or early November 2004. On June 1, 2005, the trial court
issued a warrant against the defendant for various violations of the conditions of his probation. On
August 26, 2005, the trial court conducted a hearing, during which, Russell Phillips, the defendant’s
probation officer, and the defendant testified.

        Phillips testified that he took over as the defendant’s probation officer in early January 2005.
Phillips recalled that he explained to the defendant the registration and living requirements for sex
offenders. Phillips explained that one of the conditions of the defendant’s probation was to report
any arrests for new offenses. According to Phillips, the defendant violated that condition because
he was arrested on May 28, 2005, but failed to contact him to report the arrest. Phillips said he found
out about the defendant’s arrest from a police report.

        Phillips also testified that the defendant violated another condition of his probation that he
report any change in his residency. According to Phillips, he visited the defendant’s reported address
on March 2, 2005, and a “female friend . . . reported that he no longer lived there.” Phillips
explained that the defendant later gave him a new address sometime after the March 2nd visit, but
on April 15, 2005, Phillips visited that address and “[i]t didn’t seem like anybody lived there.”

        Phillips next testified that the defendant’s probation requirements also included sex offender
registration three times a year. Phillips recalled that the defendant registered during his initial visit
but failed to register in March 2005. Phillips also pointed out that the defendant was required to
attend sex offender group treatment sessions twice a month. However, Phillips recalled that the
defendant did not attend any treatment sessions in April or May.

        Phillips remembered that the last time he talked to the defendant was after the second March
treatment session. Phillips recalled that the defendant smelled like alcohol and admitted to Phillips
that he had been drinking alcoholic beverages. Phillips said he informed the defendant that drinking
alcohol was a violation of his probation, but he must have overlooked putting the incident in his
report. Phillips concluded that the defendant was a poor candidate for success on probation.

        On cross-examination, Phillips elaborated that the defendant was arrested for failing to
appear on drug charges on May 28, 2005. Phillips admitted, however, that he did not know when
the defendant was supposed to appear on those charges, so he did not know whether the defendant
in fact failed to appear. Defense counsel then questioned Phillips about when the defendant was
supposed to report his arrest if the warrant was issued on June 1st, only three days later. Phillips
explained that he already had an initial warrant prepared “as far as [the defendant] being absconded,”
and the failure to report a new arrest was a follow-up.

        Phillips admitted that the defendant did give him two new reported addresses but clarified
he checked the two addresses and the defendant was not there. Regarding the address he visited on
March 2nd, Phillips testified that he could see that the lady who answered the door lived there
although he did not request a rental or lease agreement. Phillips testified that the defendant knew
Phillips made his visits at night.


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        Phillips reiterated that the defendant was required to register as a sex offender three times a
year. Because the defendant registered initially in October 2004, he was due to register again in
March 2005. Phillips explained that the Tennessee Bureau of Investigation computer automatically
generates a registration date and the offender is given a seven day window in which to register.
Phillips admitted that the registration date was sent to him and he was to provide that information
to the defendant. Phillips asserted, however, that the defendant had been going through the
registration process long before he became the defendant’s probation officer and the defendant knew
what to do. Phillips further explained that the defendant was also required to register whenever he
changed his address but he had not done so since December.

        Regarding the defendant’s missed group therapy sessions, Phillips testified that he had the
sign-in sheets for the two April and two May sessions and the defendant’s name was not on the lists.
Phillips admitted that the defendant told him that he could not write or read very well, but Phillips
maintained that he read the directives to the defendant and the defendant could sign his name.
Phillips did not recall whether the defendant ever tried to get a hold of him in the office and said the
defendant never left a voice mail.

        Regarding his failure to report an arrest, the defendant testified that he “got busted . . . for
a speeding ticket on the 28th of May. And [he] asked . . . Tracy at the desk down there -- to let [him]
use the phone so [he] could report that. And they never let [him] use the phone.” The defendant said
that he was pretty sure the Board of Probation and Parole did not accept collect calls. The defendant
also said that he could not get through to any of his family members to have them report his arrest
to his probation officer. The defendant recalled that he sent his son to the probation office on June
1st and “finally got him to tell him when I did get through to somebody.”

        Regarding his failure to notify Phillips of his change of addresses, the defendant explained
that Phillips went to an address where he told Phillips he no longer lived and Phillips did not get the
new address right. The defendant maintained that he always told the probation office when he
changed his residence. The defendant testified that he was illiterate and only knew what he was to
do to comply with his probation when his probation officer told him. The defendant said that he
never received information in the mail and never received help filling out forms. He said he did
sometimes sign forms that were filled out for him.

        The defendant testified that he thought he was only required to register as a sex offender
every two years. However, he remembered that he was registered “three or four times by three
different probation officers in two weeks.” The defendant remembered attempting to contact Phillips
prior to his arrest but he was always told that Phillips was not in the office. The defendant said that
he had a real serious drinking problem and was trying to get help but nobody would help him.

        The defendant explained that he moved from place to place because “the people [where he
lived] smoked crack.” He said that he asked for help finding a new place to live but he “was told



                                                  -3-
that a probation officer was supposed to help [him] and then [he] was told by somebody else that he
wasn’t supposed to help [him].”

        The defendant testified that he would sometimes fail to sign certain forms that he did not
know he was supposed to sign, but he would always sign forms “[w]hen [he] knew about them.”
He also remembered that there was one time he went by to see Phillips but he went too late.
Regarding his missed treatment sessions, the defendant testified that he missed a couple because of
his bad drinking problem, and a couple of times he went but failed to sign in. He explained that the
times he failed to sign in, the book was not there and somebody told him, “You here, so you don’t
have to sign.”

        On cross-examination, the defendant testified that the reason he called his son to report his
arrest was because the officers at the jail would not give him the phone number for the probation
office and would not let him use a phone book. The defendant denied having been told by Phillips
to report every Friday due to problems in the past. The defendant testified that Phillips initially told
him to report on Tuesdays as did his prior probation officer. In response to questioning about his
bi-monthly treatment sessions, the defendant said that he “made some of them and some of them [he]
was drinking real hard.” The defendant also admitted that he “showed up drinking” to some of the
sessions.

        Following the conclusion of the proof, the trial court found as follows:
        Based on the proof I’ve heard I’m going to find that [the defendant] has violated the
        terms of his probation by a preponderance of the evidence, based on the credibility
        of the witnesses . . . for the following reasons: That he’s not followed the rules of
        probation by reporting when his officer told him to; he has not abided by all the rules
        concerning reporting for a sex offender; and has not attended his sex offender group
        classes as ordered to do so by his probation officer.

               As far as these other allegations in the warrant, I’m not going to consider
        those. But based on that, he should be revoked to serve his sentence.

                                              ANALYSIS

        On appeal, the defendant argues that the trial court erred in revoking his probation.
Specifically, he argues that there is no substantial evidence in the record to support the trial court’s
conclusions that he failed to report a change of address, failed to register as a sex offender, and failed
to attend sex offender counseling sessions.

       Initially, we note that the decision to revoke probation lies in the sound discretion of the trial
court. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). The trial court may revoke
probation upon finding by a preponderance of the evidence that the defendant has violated the
conditions of his or her probation. See Tenn. Code Ann. §§ 40-35-310,-311(e); State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). Revocation of probation is subject to an abuse of discretion standard


                                                   -4-
of review, rather than a de novo standard. Id. If the trial judge has exercised “conscientious
judgment in making the decision rather than acting arbitrarily,” then there is no abuse of discretion.
Leach, 914 S.W.2d at 107. Discretion is abused only if the record contains no substantial evidence
to support the trial court’s conclusion that a violation has occurred. Harkins, 811 S.W.2d at 82; State
v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

        In the present case, the trial court specifically stated that its decision was based on the
credibility of the witnesses. In a probation revocation hearing, the credibility of the witnesses is for
the determination of the trial court, and such determination is given the weight of a jury verdict on
review. State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994). According to Phillips’ testimony,
the defendant violated the following conditions of his probation: he failed to report all changes of
address, he failed to register as a sex-offender in March 2005 and after each change of address, and
he failed to attend group counseling sessions in April and May 2005. Accrediting Phillips’
testimony, as did the trial court, it is our view the record contains substantial evidence to support the
trial court’s conclusion that the defendant violated the conditions of his probation.

                                           CONCLUSION

       Based upon our review of the record and the parties’ briefs, we affirm the trial court’s
revocation of the defendant’s probation.



                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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